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MRS. J. v. Portland Public Schools

United States District Court, D. Maine

October 12, 2016

MRS. J. and MR. J., individually and as parents and legal guardians of I.J., a minor, Plaintiffs
v.
PORTLAND PUBLIC SCHOOLS, Defendant

          RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

          John H. Rich III United States Magistrate Judge

         Mr. and 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.

         For the 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 33.

         Portland 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.

         After 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 predetermination.

         I. Applicable Legal Standards

         A. IDEA: Overview

         1. The 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 a child:

(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 related services.

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 omitted).

         3. “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).

         4. The 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).

         5. A 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).

         B. Standard and Scope of Review

         6. “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).

         7. The 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).

         8. The 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).

         9. In 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 factual support.”).

         C. Adequacy and Appropriateness of IEP

         10. A 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).

         11. In 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.

         12. In 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).

         D. Remedies

         13. 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).

         14. In 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.

         15. “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).

         16. In 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. at 370-71.

         17. The 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).

         18. 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).

         II. Proposed Findings of Fact

         1. 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.[1] 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.

         2. I.J. 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.

         3. 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.

         4. I.J. 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.

         5. In 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.

         6. In 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.

         7. The 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.

         8. By 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.

         9. For 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.

         10. The 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 models.” Id.

         11. 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.

         12. In 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.

         13. As 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. Id.

         14. 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.

         15. On 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.

         16. 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.

         17. In 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.

         18. In 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.

         19. 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.

         20. In 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.

         21. In 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 (kindergarten). Id.

         22. 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.

         23. 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.

         24. The 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.

         25. At 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.

         26. At 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 ...


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