United States District Court, D. Maine
MRS. J. and MR. J., individually and as parents and legal guardians of I.J., a minor, Plaintiffs
PORTLAND PUBLIC SCHOOLS, Defendant
RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF
H. Rich III United States Magistrate Judge
Mrs. J., parents of student I.J. (“Parents”),
challenge the adequacy of the remedy awarded by a Maine
Department of Education (“MDOE”) hearing officer
pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq.,
and its state-law analogue, 20-A M.R.S.A. § 7001 et
seq., for a failure by defendant Portland Public Schools
(“Portland”) to provide I.J. with a free
appropriate public education (“FAPE”) during her
fifth-grade year. See Plaintiffs' Memorandum of
Law (“Parents' Brief”) (ECF No. 29) at 1,
15-21. They also challenge the hearing officer's
conclusions that Portland offered I.J. an appropriate
seventh-grade placement at Lyman Moore Middle School
(“LMMS”) and did not impermissibly predetermine
that placement. See Id. at 1, 21-33.
denial of a FAPE to I.J. in fifth grade, the Parents seek the
remedy of further educational instruction at Margaret Murphy
Center for Children (“MMCC”) or such other remedy
as the court feels is appropriate. See id. at 21.
With respect to the assertedly inappropriate seventh- grade
placement in public school, they ask that Portland be ordered
to continue I.J.'s placement at MMCC. See id. at
asks that the court decline to disturb the hearing
officer's award of specific compensatory educational
services on account of the denial of a FAPE to I.J. in fifth
grade and conclude, as did the hearing officer, that the
offer of placement at LMMS in seventh grade was appropriate
and not predetermined. See Defendant Portland Public
Schools' Memorandum of Law (“Portland's
Brief”) (ECF No. 32) at 1, 35.
careful review of the administrative record, I recommend that
the court adopt the following findings of fact and
conclusions of law, denying the requested relief on the bases
that, (i) although the remedy ordered by the hearing officer
for the fifth-grade denial of a FAPE to I.J. was inadequate,
the Parents have not demonstrated a need for additional
relief in view of I.J.'s continued placement at MMCC
pursuant to the IDEA's “stay put” provision,
and (ii) Portland offered I.J. an appropriate seventh-grade
placement at LMMS that was not the product of
Applicable Legal Standards
IDEA is a “comprehensive statutory scheme” that
Congress enacted to ensure that all children with
disabilities are accorded a FAPE and that both their rights
and those of their parents are protected. 20 U.S.C. §
1400(d)(1)(A)-(B); Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52, 58 (1st Cir. 2002). A child with a disability is
(i) with intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual
impairments (including blindness), serious emotional
disturbance (referred to in this chapter as “emotional
disturbance”), orthopedic impairments, autism,
traumatic brain injury, other health impairments, or specific
learning disabilities; and
(ii) who, by reason thereof, needs special education and
Mr. & Mrs. Doe v. Cape Elizabeth Sch. Dist., __
F.3d __, No. 15-1155, 2016 WL 4151377, at *1-*2 (1st Cir.
Aug. 5, 2016) (quoting 20 U.S.C. § 1401(3)(A)).
2. As a
condition of receiving federal funds, states are required to
provide a FAPE to all disabled children between the ages of
three and 21. See, e.g., Ms. S. v. Regional Sch. Unit
72, 829 F.3d 95, 113 (1st Cir. 2016); Lessard v.
Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23
(1st Cir. 2008). In order to provide a FAPE, a school must
create and then follow an “individualized education
program” (“IEP”) for each disabled child.
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26,
34 (1st Cir. 2012). “To ensure that this takes place, a
school district must take steps to identify children who may
qualify as disabled, evaluate each such child to determine
his or her eligibility for statutory benefits, and develop a
customized IEP designed to ensure that the child receives a
level of educational benefits commensurate with a
FAPE.” Ms. S., 829 F.3d at 113-14 (citation
and internal quotation marks omitted). “The IDEA also
mandates that, to the maximum extent appropriate, a school
district's special education accommodations should take
place in the least restrictive environment available.”
Id. at 114 (citation and internal punctuation
“The IEP is the centerpiece of the IDEA's education
delivery system for disabled children.” Id.
(citation and internal punctuation omitted). The IEP is
“a written statement for each child with a disability
that is developed, reviewed, and revised” in accordance
with the IDEA and must include, among other things, the
following: a statement of the child's present levels of
academic achievement and functional performance; a statement
of measurable annual goals; criteria for measuring progress
toward those goals; and a statement of the specific services
that the school will offer. 20 U.S.C. § 1414(d)(1)(A).
“A customized IEP must include, at a bare minimum, the
child's present level of educational attainment, the
short- and long-term goals for his or her education,
objective criteria with which to measure progress toward
those goals, and the specific services to be offered.”
Ms. S., 829 F.3d at 114 (citation and internal
quotation marks omitted). “An IEP therefore must target
all of a child's special needs, including a
child's social limitations.” Id.
(citations and internal quotation marks omitted) (emphasis in
original). “However, the IDEA does not promise perfect
solutions, and the obligation to devise a custom-tailored IEP
does not imply that a disabled child is entitled to the
maximum educational benefit possible.” Id.
(citations and internal punctuation omitted). “We
therefore review an IEP's compliance with the IDEA based
on whether the IEP is reasonably calculated to confer a
meaningful education benefit.” Id. (citation
and internal quotation marks omitted).
IDEA imposes additional procedural and substantive
requirements with regard to the IEP. See, e.g., Roland M.
v. Concord Sch. Comm., 910 F.2d 983, 987-88 (1st Cir.
1990). For example, parents have the right to be part of the
IEP “team” along with the teachers and other
educational professionals charged with formulating a
child's particular IEP. 20 U.S.C. § 1414(d)(1)(B);
Lessard, 518 F.3d at 23. The purpose behind such
procedural safeguards is to “guarantee parents both an
opportunity for meaningful input into all decisions affecting
their child's education and the right to seek review of
any decisions they think inappropriate.” Pihl v.
Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st
Cir. 1993) (citation and internal quotation marks omitted).
Thus, in the event of a dispute between the school and the
child's parents regarding the IEP, the parents have the
right to demand a hearing by an impartial hearing officer.
See, e.g., 20 U.S.C. § 1415(f)(1)(A), (B)(ii).
A party dissatisfied with a hearing officer's decision
may seek judicial review of that decision by a state court or
a federal district court, which must (i) receive the records
of the administrative proceedings; (ii) hear additional
evidence at the request of a party; and (iii) grant relief as
it deems appropriate based upon the preponderance of the
evidence. See, e.g., id. § 1415(i)(2)(A), (C).
court's authority to grant relief under the IDEA
“includes the power to order school authorities to
reimburse parents for their expenditures on private school
education for a child if the court ultimately determines that
such placement, rather than a proposed IEP, is proper under
the Act.” Pihl, 9 F.3d at 188 (citation and
internal quotation marks omitted).
Standard and Scope of Review
“Judicial review of administrative decisions in IDEA
cases requires a more critical appraisal than clear-error
review, but nevertheless falls well short of complete de
novo review.” Cape Elizabeth, 2016 WL
4151377, at *8 (citation and internal punctuation omitted).
“In the course of this involved oversight, a court must
make bounded, independent decisions - bounded by the
administrative record and additional evidence, and
independent by virtue of being based on a preponderance of
the evidence before the court.” Id. (citations
and internal quotation marks omitted). “While the court
must recognize the expertise of an administrative agency, as
well as that of school officials, and consider carefully
administrative findings, the precise degree of deference due
such findings is ultimately left to the discretion of the
trial court.” Hampton Sch. Dist. v.
Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992) (citations
and internal quotation marks omitted).
First Circuit and other courts have suggested that with
respect to a hearing officer's legal conclusions, the
level of deference due depends on whether the court is
equally well-suited to make the determination despite its
lack of educational expertise. See, e.g., Deal v.
Hamilton County Bd. of Educ., 392 F.3d 840, 849 (6th
Cir. 2004) (“Less weight is due to an agency's
determinations on matters for which educational expertise is
not relevant because a federal court is just as well suited
to evaluate the situation. More weight, however, is due to an
agency's determinations on matters for which educational
expertise is relevant.”) (citations and internal
quotation marks omitted); Abrahamson v. Hershman,
701 F.2d 223, 231 (1st Cir. 1983) (noting that while it might
be “inappropriate for a district court under the rubric
of statutory construction to impose a particular educational
methodology upon a state[, ]” court was free to
construe term “educational” in IDEA “so as
to insure, at least, that the state IEP provides the hope of
educational benefit.”). Even as to findings of fact,
the court retains the discretion, after careful
consideration, “to accept or reject the findings in
part or in whole.” Town of Burlington v. Department
of Educ., 736 F.2d 773, 792 (1st Cir. 1984),
aff'd 471 U.S. 359 (1985).
First Circuit has “held that, in reviewing the hearing
officer's determination in IDEA cases, the persuasiveness
of a particular administrative finding, or the lack thereof,
is likely to tell the tell.” Cape Elizabeth,
2016 WL 4151377, at *10 (citations and internal quotation
marks omitted). “Hence, where . . . post-hearing
evidence is credible so as to question the persuasiveness of
the hearing officer's decision, a court should extend
less deference to the hearing officer's
determinations.” Id. (citation omitted).
“That is to say, the district court should afford more
deference when its review is based entirely on the same
evidence as that before the hearing officer than when the
district court has before it additional evidence that was not
considered by the officer.” Id. (citations and
internal punctuation omitted).
IDEA cases, as in other contexts, the burden of persuasion
rests on the party seeking relief. See, e.g., Schaffer ex
rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005);
Dobrowolski, 976 F.2d at 54; Maine Sch. Admin.
Dist. No. 35 v. Mr. R., 176 F.Supp.2d 15, 23 (D. Me.
2001) (rec. dec., aff'd Feb, 27, 2002),
rev'd on other grounds, 321 F.3d 9 (1st Cir.
2003), called into doubt on other grounds,
Boston Children's First v. City of Boston, 395
F.3d 10, 15 (1st Cir. 2005) (“The party allegedly
aggrieved must carry the burden of proving . . . that the
hearing officer's award was contrary to law or without
Adequacy and Appropriateness of IEP
parent may challenge a hearing officer's IDEA decision on
either or both of two bases: that a particular school
district did not comply with the procedures set forth in the
act and/or that the IEP developed through the act's
procedures was not reasonably calculated to enable a child to
receive meaningful educational benefits. Board of Educ.
v. Rowley, 458 U.S. 176, 206-07 (1982).
Burlington, the First Circuit identified certain
“basic guidelines” for determining the adequacy
of an IEP, among these being the “achievement of
effective results” and “demonstrable improvement
in the educational and personal skills identified as special
needs[.]” Burlington, 736 F.2d at 788. The
First Circuit subsequently clarified in Roland M.
that, while “actual education results are relevant to
determining the efficacy of educators' policy choices[,
]” parties nevertheless should not “confuse what
is relevant with what is
dispositive.” Roland M., 910 F.2d at
991 (emphasis in original). Although “[a]ctual
educational progress can (and sometimes will) demonstrate
that an IEP provides a FAPE . . . impos[ing] the inverse of
this rule - that a lack of progress necessarily betokens an
IEP's inadequacy - would contradict the fundamental
concept that an IEP is a snapshot, not a
retrospective.” Lessard, 518 F.3d at 29
(citation and internal punctuation omitted). “[T]he
issue is not whether the IEP was prescient enough to achieve
perfect academic results, but whether it was
‘reasonably calculated' to provide an
‘appropriate' education as defined in federal and
state law.” Roland M., 910 F.2d at 992.
addition to developing an IEP that is reasonably calculated
to provide meaningful educational benefits, D.B.,
675 F.3d at 34-35, a school district is required to implement
the IEP in accordance with its requirements, see, e.g.,
Doe ex rel. Doe v. Hampden-Wilbraham Reg'l Sch.
Dist., 715 F.Supp.2d 185, 195 (D. Mass. 2010)
(citing 20 U.S.C. § 1401(9)(D)). Although
perfect implementation is not required, courts have found
that “the failure to implement a material or
significant portion of the IEP can amount to a denial of
FAPE.” Sumter Cty. Sch. Dist. 17 v. Heffernan ex
rel. TH, 642 F.3d 478, 484 (4th Cir. 2011). See
also, e.g., Van Duyn ex rel. Van Duyn v. Baker Sch. Dist.
5J, 502 F.3d 811, 822 (9th Cir. 2007) (“a
material failure to implement an IEP violates the
IDEA”) (emphasis in original).
Under the IDEA, the court has the power, “basing its
decision on the preponderance of the evidence, ” to
“grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).
Judges have broad discretion in fashioning an equitable
remedy in IDEA cases. See, e.g., C.G. ex rel. A.S. v.
Five Town Cmty. Sch. Dist., 513 F.3d 279, 290 (1st Cir.
2008); Pihl, 9 F.3d at 188-89. “[A]lthough an
award of damages is not available, a court may award various
forms of retroactive and prospective equitable relief,
including reimbursement of tuition, compensatory education,
and other declaratory and injunctive remedies.”
L.O. v. New York City Dep't of Educ., 822 F.3d
95, 125 (2d Cir. 2016) (citation and internal punctuation
omitted). Whereas tuition reimbursement is essentially a
backward-looking form of relief, the remedy of compensatory
education typically is prospective, “entitl[ing] [the]
recipient to further services, in compensation for past
deprivations [of the IDEA], even after his or her eligibility
for special education services under [the] IDEA has
expired[.]” Ms. M. ex rel. K.M. v. Portland Sch.
Comm., 360 F.3d 267, 273-74 (1st Cir. 2004) (citation
and internal punctuation omitted).
a case in which a child remains in public school under an
inappropriate IEP, compensatory education may be granted if
additional services are necessary to make up for the local
educational agency's past failures. See, e.g.,
Mr. I. ex rel. L.I. v. Maine Sch. Admin. Dist. No.
55, 480 F.3d 1, 25 (1st Cir. 2007).
“[C]ompensatory education is not an automatic
entitlement but, rather, a discretionary remedy for
nonfeasance or misfeasance in connection with a school
system's obligations under the IDEA.”
C.G., 513 F.3d at 290. A school district's
responsibility for compensatory educational services does not
depend on the vigilance of the parents. See, e.g., Mr.
R., 321 F.3d at 20. Nor does it depend on a finding that
the school district acted in bad faith or egregiously.
See, e.g., M.C. ex rel. J.C. v. Central Reg'l Sch.
Dist., 81 F.3d 389, 397 (3d Cir. 1996). Rather, “a
student who fails to receive appropriate services during any
time in which he is entitled to them may be awarded
compensation in the form of additional services at a later
time.” Pihl, 9 F.3d at 187.
“The nature and extent of compensatory education
services which federal courts have recognized varies
according to the facts and circumstances of a given
case.” Id. at 188 n.8. “Such an award
may include extra assistance in the form of tutoring, or
summer school, while students are still within the age of
entitlement for regular services under the Act, or an
extended period of assistance beyond the statutory age of
entitlement.” Id. (citations omitted).
Compensatory education serves to replace the
“educational services the child should have received in
the first place” and “should aim to place the
disabled children in the same position they would have
occupied but for the school district's violations of
IDEA[, ]” Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005), although
“there is no obligation to provide a day-for-day
compensation for time missed[, ]” Park v. Anaheim
Union High Sch. Dist., 464 F.3d 1025, 1034 (9th Cir.
2006), called into doubt on other grounds, V.S.
ex rel. A.O. v. Los Gatos-Saratoga Joint Union High Sch.
Dist., 484 F.3d 1230, 1234-35 (9th Cir. 2007) (citation
and internal punctuation omitted).
a case in which a disabled child's parents unilaterally
place the child in a private school because the local
educational agency failed to make a FAPE available to that
child in a timely manner, tuition reimbursement may be
granted if the alternative placement was “proper”
under the IDEA. See 20 U.S.C. §§
1412(a)(10)(C)(ii) & 1415(i)(2)(C)(iii); Rafferty v.
Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.
2002). “Reimbursement” is not damages, but rather
payment of “expenses that [the school] should have paid
all along and would have borne in the first instance had it
developed a proper IEP.” Burlington, 471 U.S.
question of whether a unilateral placement is
“proper” is “viewed more favorably to the
parent” than the question of whether the
“placement was required in order to provide a free
appropriate public education[.]” Rome Sch. Comm. v.
Mrs. B., 247 F.3d 29, 33 n.5 (1st Cir. 2001). Under this
analysis, a unilateral placement must be “appropriate,
” 20 U.S.C. § 1401(9)(C), i.e.,
reasonably calculated to confer a meaningful educational
benefit, see Mr. I., 480 F.3d at 10, but need not be
provided under public supervision or according to the terms
of an IEP, see 20 U.S.C. § 1401(9)(A), (D);
Mr. I., 480 F.3d at 24 & n.22. To be
reasonably calculated to confer a meaningful
educational benefit, the private placement “need
provide only some element of special education
services” in which the public school placement has been
deficient, Mr. I., 480 F.3d at 25 (citation and
internal quotation marks omitted) (emphasis in original), and
may not entirely disregard the concept of
“[m]ainstreaming[, ]” Rafferty, 315 F.3d
at 26 (citation and internal quotation marks omitted).
However, even if a unilateral placement is substantively
“proper, ” a tuition reimbursement “may be
reduced or denied” if the disabled child's parents
failed to give the local educational agency proper notice
that they would be pulling their child out of public school,
if the agency properly notified the parents that it wished to
reevaluate the child and the parents failed to make their
child available, or “upon a judicial finding of
unreasonableness with respect to actions taken by the
parents.” 20 U.S.C. § 1412(a)(10)(C)(iii).
Proposed Findings of Fact
I.J., one of a set of triplets born prematurely at 30
weeks' gestation, is a 15-year-old student with a complex
disability profile and set of educational needs. Complaint
(Injunctive Relief Requested) (“Complaint”) (ECF
No. 1) ¶ 9; Answer (ECF No. 12) ¶ 9; Testimony of
Mrs. J., Administrative Record (“Record”), Vol.
XXI at 4846-71, Vol. XXII at 5017-24, 5042-63
(“Mrs. J.”), at 9. She has been
diagnosed with Pervasive Developmental Disorder, Moderate
Intellectual Disability, anxiety disorder, attention deficit
disorder (combined type), hyperactivity disorder,
gastroesophageal reflux disease, poor weight gain, juvenile
rheumatoid arthritis, cerebral visual impairment
(“CVI”), speech and language disorder, cerebral
palsy, hypothyroidism, short stature, and nocturnal enuresis.
Complaint ¶ 10; Answer ¶ 10.
has educational needs in a wide range of areas, including
academics, behaviors, and communication. Record, Vol. IV at
914, Vol. VII at 1495-96. She requires a host of
accommodations in her work setting to cut down on visual
distractions. Testimony of Barbara Ferguson, id.,
Vol. XXI at 4932-53, Vol. XXII at 5015-16
(“Ferguson”), at 239-48. Her primary
behavioral concerns are active refusal, aggression, bolting,
flopping, verbal protests, verbal perseveration, disrobing
(categorized at two levels of intensity), and hyperarousal
(defined as repetitive, non-purposeful movements that include
rocking back and forth, bouncing in a chair, and slapping her
arms, legs, or body). Record, Vol. V at 1104.
Barbara Ferguson, a teacher of the visually impaired who has
worked with I.J. since preschool, testified that CVI is a
“very complex” disorder that “impacts
almost everything [I.J.] does.” Ferguson at
238. CVI causes I.J. to be “very distracted by both
visual and auditory stimuli[, ]” requiring her to be
taught new skills in “an individual setting with
minimal distractions.” Record, Vol. II at 461. CVI is
not an impairment in the functioning of the eyes but, rather,
in the cerebral management of visual images and, thus,
glasses cannot correct it. Ferguson at 237-38.
attended Portland schools through fifth grade (2012-13),
repeating kindergarten in 2007-08 by agreement of her IEP
team because of her difficulties during her first year
(2006-07). Complaint ¶¶ 12, 15, 26-29; Answer
¶¶ 12, 15, 26-29. Her kindergarten teachers
reported that she required support to interact with peers and
function in the classroom. Record, Vol. II at 448. However,
they found her to be very sociable, with minutes of an IEP
team meeting reflecting that “other children are a very
powerful force for her.” Id. at 445.
2007, psychologist Beverly Strzok, Ph.D., performed a
cognitive evaluation of I.J. at age 6 in which she measured
her full-scale IQ as 48, below the first percentile.
Id. at 450, 452. Dr. Strzok recommended that I.J.
receive considerable individual attention in a highly
structured classroom. Id. at 455. The accuracy of
these test results was later called into question due to
limitations in testing children with I.J.'s combination
of disabilities. Id., Vol. VII at 1493.
2008, two neurological consultants recommended that I.J. be
taught using Applied Behavior Analysis (“ABA”)
techniques. Id., Vol. III at 476, 499. On February
20, 2008, David K. Urion, M.D., recommended that she
“receive fairly intensive and aggressive services in
school by a trained ABA instructor including but not limited
to the utilization of ABA techniques.” Id. at
476. On May 29, 2008, Anne M. Neumeyer, M.D., stated that it
was “essential” that she receive an ABA school
program with a 1:1 student-teacher ratio for at least 20
hours a week. Id. at 499.
Parents requested that Portland provide ABA programming for
I.J. and her twin sister; however, in the absence of
consensus among members of her IEP team, Portland declined to
do so, stating that it felt its existing structured
programming for them had been successful. Id. at
492. The Parents disagreed, complaining to Portland staff
that, after two years of kindergarten, their daughters had
“very little, if any, pre-literacy and pre-numeracy
skills.” Id. at 603. They privately enrolled
I.J. and her twin sister at MMCC, a special-purpose private
school in Auburn, Maine, for an eight-week program in the
summer of 2008, and were very pleased with their progress
there. Mrs. J. at 29; Testimony of Allyson Feltis,
Record, Vol. XXI at 4872-4901
(“Feltis”), at 116. I.J.'s teacher
at MMCC reported, “[I.J.] learns quickly, is easily
reinforced by social attention, and expresses herself
incredibly well.” Record, Vol. III at 614.
letter dated August 12, 2008, Mrs. J. requested that Portland
place I.J. and her twin sister at MMCC for first grade,
stating that they had made “amazing progress”
even in its part-time summer program and were
“responding to the center's 1:1 ABA approach with
an eagerness to learn that is exciting and is showing very
positive results and promise for the girls.”
Id. at 606. Portland countered with an offer of ABA
teaching methodologies to be delivered by a Board Certified
Behavior Analyst (“BCBA”) assisted by at least
two educational technicians, and I.J. remained in Portland
public schools, attending Riverton School for first through
third grades. Id. at 607; Mrs. J. at 31-41.
fourth grade (2011-12), Portland moved I.J. to the
“BEACH” program, a day treatment program at Ocean
Avenue Elementary School. Mrs. J. at 45-46. Theresa
Moran, her teacher, used discrete-trial ABA programming.
Testimony of Theresa Moran, Record, Vol. XXIII at 5173-99
(“Moran”), at 854. Moran was assisted by
a team that included six educational technicians, whom she
rotated among students so that each would become used to all
of them, plus a treatment team that included a Spring Harbor
Hospital psychiatrist and a BCBA, Jonathan Kimball, Ph.D.
Id. at 852, 855-56. Some days, I.J. had no
behavioral issues while, other days, she did things like flop
on the ground. Id. at 859.
program included opportunities for mainstreaming in limited
settings. Id. at 857-58. I.J., who was “a lot
of fun, ” “funny, ” and “very social,
” made friends with a couple of mainstream peers
“who really looked out for her and . . . were good peer
Moran felt that I.J. did well in fourth grade, and Mrs. J.
told the IEP team in March 2012 that she was pleased with the
program, although she requested that the math curriculum be
reviewed to address the limited progress that I.J. had made
in that subject over the prior three or four years.
Id. at 857; Record, Vol. IX at 1960. Mrs. J.
testified that Moran was skilled and knowledgeable. Mrs.
J. at 46. She described Moran as the first teacher who
had been willing to collaborate with her and “a breath
of fresh air.” Id. at 46-47.
March 2012, Portland conducted several evaluations of I.J.,
including an occupational therapy (“OT”)
assessment that concluded that she should begin a keyboarding
program to further develop that skill and use it as her
primary means of written communication. Record, Vol. IX at
2003. Ferguson also felt that keyboarding was a very
important skill for I.J. because she does not have the visual
or motor skills to write by hand. Ferguson at 251.
early as I.J.'s fourth-grade year, Mrs. J. told Moran
that she did not want I.J. to attend middle school at LMMS.
Mrs. J. at 626. At hearing, Mrs. J. admitted that
her mind had been made up “from the very
beginning” that I.J. should not attend LMMS.
I.J. continued in the BEACH program for fifth grade (2012-13)
with Moran as her primary teacher. Mrs. J. at 50.
Her IEP provided that she attend art and music with
mainstream peers. Record, Vol. IX at 1954. For lunch, she
invited two mainstream peers to join her. Id.;
Moran at 868.
September 24, 2012, Moran emailed Mrs. J., notifying her that
I.J. no longer had a 1:1 aide at recess and that one
educational technician was covering both I.J. and a
classmate, which Moran acknowledged was a violation of
I.J.'s IEP. Record, Vol. XII at 2764. However, this
problem lasted for only about a week. Moran at 913.
During that time, there was an incident in which a child
wandered off, and I.J. was left unattended for a few minutes
while the educational technician went to find the other
student. Id. at 915-16. In her September 24, 2012,
email, Moran also informed Mrs. J. that I.J. was no longer in
a lunch group on Monday, Wednesday, and Friday due to
staffing changes and that there were times when I.J. would
need to be grouped with other students for academics,
although Moran knew this was “not ideal” and that
I.J. had “a very hard time concentrating when no[t] by
herself.” Record, Vol. XII at 2764.
Mrs. J. brought concerns about these developments to the
attention of Portland's Director of Special Education,
Sharon Pray, who explained that the BEACH program had brought
in a substitute to fill a vacant position. Id. at
2762. In a September 26, 2012, email to Moran, Mrs. J. also
expressed concern that I.J. was putting her hands in her
pants at school. Id. at 2761. In her response of the
same date, Moran agreed that this needed to be addressed and
that I.J. was increasingly exhibiting behaviors to get
attention; for example, Moran had never seen I.J. “go
as far as she did today” when she “totally
trashed” Moran's room. Id.
November 2012, Ferguson recommended a desktop computer for
I.J., noting that it would have a much larger screen and
provide better visual contrast than the Mac laptops used in
Portland public schools. Id., Vol. IV at 722. In a
December 2012 report, she noted that there had been
“concerns about [I.J.'s] ability to remain focused
enough on her work to make significant educational gains even
though her resource room environment is designed to minimize
distractions.” Id. at 724.
response to a December 12, 2012, email in which Mrs. J.
stated that she had kept I.J. home from school in part
because she had heard Moran was not there and there was no
substitute, Moran responded, “We very rarely get a
sub.” Record, Vol. XII at 2710.
Portland kept data on I.J.'s behaviors, tracking
hyperarousal, refusal, dropping, whining, and aggression.
Id., Vol. IV at 725-30. Data kept between September
2012 and February 2013 showed that, compared with data from
January 2012 through June 2012, I.J.'s hyperarousal
levels had increased and were very high on a daily basis.
Id. at 725-26.
February 2013, Ferguson conducted a keyboarding assessment
for I.J., stating, “Compared with her previous typing
on a full size keyboard of a computer, [I.J.] appeared to
scan the keys somewhat faster on the Mac laptop and
iPad.” Id., Vol. IX at 1896. The keyboard in
I.J.'s classroom broke in November 2012 and was not
repaired or replaced until the spring of 2013. Mrs.
J. at 82-83.
a March 13, 2013, email to Moran, Mrs. J. inquired about
I.J.'s progress in reading and whether the Rigby reading
test was still being given. Record, Vol. XII at 2662. Moran
replied that she had tested I.J. a couple of months earlier
and that she was still reading at the same level
I.J.'s IEP team convened on March 28, 2013, for her
annual review. Id., Vol. VIII at 1871. Mrs. J.
presented a statement of numerous parental concerns.
Id. at 1875-77. The Parents' primary concern was
that I.J. had “failed to reach math and reading goals
that should have been mastered in 2010.” Id.
at 1875. They also listed, among 34 concerns, that I.J.'s
math program was not appropriate for her, she had regressed
in some math skills such as telling time and coin values, she
was being given math instruction in a group setting, she was
still reading at a kindergarten level and had actually
regressed, and reading consultant Lori Coffin was no longer
consulting. Id. They also expressed concern about
I.J.'s behaviors, including work refusal and putting her
hands down her pants, the lack of a keyboard, given the
illegibility of I.J.'s handwriting, Portland's
failure to provide an assistive technology evaluation that
had been approved at two prior IEP team meetings in 2012 and
2013, as a result of which Mrs. J. had just signed a contract
with ALLTECH to perform that evaluation, and Portland's
failure to replace I.J.'s O&M, or orientation and
mobility, specialist after the specialist moved, as a result
of which I.J. had not received the O&M services called
for in her IEP. Id. at 1875-76.
Moran presented an annual IEP progress report, stating that
I.J. had mastered only eight new words on the Dolch Primer
versus 37 the prior year, that it took her seven
months to learn four new words, that she had difficulty with
passage reading, and that her typing was inconsistent due to
computer issues in the classroom, although a new computer had
been ordered. Id. at 1846. Moran reported that I.J.
had made some progress on her math goals, and when she did
not make progress on her plus-2s, her program was revamped.
Id. at 1846-47. She had made progress in counting
and number sequencing, but had made no progress in her new
coin identification program, days of the week, or calendar
skills. Id. at 1847-48. Moran's behavioral data
showed an improvement in I.J.'s behaviors of refusal,
dropping, and aggression. Id. at 1849.
IEP team agreed that Portland would obtain an assistive
technology evaluation, with recommendations for programming,
from ALLTECH, approved changes to I.J.'s OT, physical
therapy (“PT”), and speech-language pathology
(“SLP”) programs, and agreed to continue her
annual review on April 4, 2013. Id. at 1866-67.
the April 4 meeting, Mrs. J. expressed concern about the
amount of time I.J. was losing because of her behaviors,
stating that she felt that I.J. would do better if only two
educational technicians worked with her. Id. at
1851. Dr. Kimball stated that he believed I.J.'s behavior
plan, which involved the use of stars, tokens, and small
rewards to reinforce desirable behavior and a “three
strikes card” to deter undesirable behavior, was
appropriate. Id. at 1851, 1854-56; Moran at
863-64. However, he recommended an experiment to test the
hypothesis that her behaviors would improve if she were in a
setting with fewer distractions, aided by only two
technicians. Record, Vol. VIII at 1851. The IEP team agreed
that Dr. Kimball should design the experiment and provided
for 30 minutes of BCBA consultation every week and an
additional 60 minutes every other week. Id. at 1850.
The meeting was adjourned until April 10, 2013, for purposes
of finalizing I.J.'s IEP. Id.
its April 10 meeting, the IEP team agreed to have Coffin
complete speech/language and reading achievement evaluations
of I.J. Id. at 1813. The team also agreed to have a
Portland math consultant assess I.J.'s academic
achievement in math and to have I.J. complete an ABLLS, or
Assessment of Basic Language and Learning Skills, test.
Id.; Moran at 889. The ABLLS test is
designed for children with autism and has sections on
academics, socializing, play, dressing, toileting, PT, and
OT. Moran at 889. The team also agreed that, as part
of Dr. Kimball's experiment, the same two educational
technicians would provide services to I.J. Record, Vol. XIII
at 1813. Mrs. J. requested ...