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MS. S. v. Regional School Unit 72

United States District Court, D. Maine

November 20, 2017

MS. S., individually and as a parent and legal guardian of B.S., a minor, Plaintiff,
v.
REGIONAL SCHOOL UNIT 72, Defendant, and STATE OF MAINE DEPARTMENT OF EDUCATION, Intervenor-Defendant.

          ORDER ON REMAND ISSUES

          JON D. LEVY U.S. DISTRICT JUDGE.

         Ms. S. contends that her son was denied a free appropriate public education as required by the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C.A. § 1400, et seq. (2017). After a lengthy procedural history, including a decision by the U.S. Court of Appeals for the First Circuit remanding this case for further proceedings, the case now presents a single question of law for decision: whether the two-year Filing Limitation contained in section XVI.13.E of the Maine Unified Special Education Regulation (“MUSER”), 05-071 C.M.R. ch. 101, adopted in 2010, is valid. I conclude that the rule is invalid and that, as a consequence, Ms. S. is entitled to an additional evidentiary administrative hearing on the portion of her claims that remain in dispute.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Background

         As a child, Ms. S.'s son, B.S., experienced developmental delays. Due in part to those delays, B.S. was enrolled in special education classes on and off throughout his childhood. As he got older, B.S.'s diagnoses and his individualized education plan were adjusted several times. Despite his challenges, B.S. was academically successful at times. At one point, B.S. consistently earned grades in the mid-90s.

         At the start of his ninth grade year, B.S. was enrolled at Fryeburg Academy, and the school determined that he did not require special education services. As the year progressed, however, the school re-evaluated B.S.'s needs and moved him to a “transition program.” B.S. remained at Fryeburg Academy until the middle of his eleventh grade year, when he transferred to the REAL school, where he completed his high school education. Throughout his time at Fryeburg Academy, the school readjusted his educational plan several times.

         In the appeal taken in this case, the U.S. Court of Appeals for the First Circuit upheld my earlier decision that B.S. was-with one exception-provided a free appropriate public education in his eleventh and twelfth grade years in keeping with the requirements of the IDEA, but overturned my conclusion that Ms. S.'s claims against Regional School Unit 72 (“the School District”) related to B.S.'s ninth and tenth grade years were time-barred under MUSER.

         B. Relevant MUSER Rule Changes

         The timeliness of Ms. S.'s hearing request as to her son's ninth and tenth grade years was affected by changes to the MUSER rules that the Department initiated in 2009. MUSER implements the IDEA in Maine. Ms. S. v. Reg'l Sch. Unit 72, 829 F.3d 95, 102 (1st Cir. 2016). Although the IDEA employs its own procedure for requesting a due process hearing, the federal statute permits variation at the state level. See, e.g., 20 U.S.C. § 1415(f)(3)(C) (2017) (“A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.”). Two MUSER rules govern the due process hearing timeline. In its decision in this case, the First Circuit characterized these rules as the “Look-Back Term” and the “Filing Limitation.”

         The Look-Back Term is set forth in MUSER § XVI.5A(2), and, as the name suggests, looks backward by limiting how far back in time a claim may reach once a parent or district knows or should have known of an asserted violation. MUSER, 05-071, C.M.R. ch. 101 § XVI.5.A(2). The rule currently provides a two-year Look-Back Term:

The due process hearing request must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process hearing request.

Id.

         The Filing Limitation, set forth in MUSER § XVI.13.E, is forward looking and specifies the time within which a parent or school district must file a request for a due process hearing once the parent or district knew or should have known of the action that is the basis for the request. MUSER, 05-071, C.M.R. ch. 101 § XVI.13.E. It currently provides a two-year Filing Limitation:

A parent or agency must request an impartial hearing on their due process hearing request within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process hearing request.

Id.

         In 2009, MUSER'S Look-Back Term and Filing Limitation were each four years. They varied from the corresponding federal provisions in the IDEA, which are each two years. In its decision, the First Circuit explained that these provisions operate in tandem so that, when both were set at four years,

a parent might have had eight years from the date of an alleged violation to file an IDEA due process hearing request: the violation could have taken place up to four years before the parent knew or should have known about the violation (the look-back term), and then, from the point at which the parent knew or should have known about the violation, the parent had another four years to decide if he or she would like to request a due process hearing (the filing limitation).

Ms. S., 829 F.3d at 103.

         In 2009, the State of Maine Department of Education (“the Department”) simultaneously adopted an emergency rule change and proposed a major substantive rule change so that the MUSER Look-Back Term and Filing Limitation would align with the corresponding two-year federal provisions. 5 M.R.S.A. §§ 8072, 8073. While agencies undertaking a major substantive rule change procedure must wait for legislative approval before finally adopting proposed changes, 5 M.R.S.A. § 8072, an emergency rule temporarily takes effect before earning legislative approval, 5 M.R.S.A. § 8073; in that sense, it is a stop-gap, and in this case the Department employed it to implement its intended rule changes while awaiting legislative approval.[1] Both types of rule changes require notifying the public and the Legislature. 5 M.R.S.A. §§ 8053, 8072, 8073. The following recounting of the relevant notices issued by the Department is crucial to the outcome of questions presented.

         The Department posted several public notices. In November 2009, the Department submitted two Notices of Agency Rulemaking Proposals to Maine's Secretary of State. The notices summarized the Department's proposed rules, and the summaries were disseminated to inform the public and solicit comments before a public hearing. One notice pertained to the proposed major substantive rule change, and the other pertained to the emergency rule change. Both notices employed the same language with respect to changes to the due process hearing timeline, stating that “pursuant to the Department's intent not to exceed minimum federal requirements and to address cost containment . . . the statute of limitations for due process hearings will be changed to the federal standard of two years.” ECF No. 71 at 4, 5.

         Each notice was accompanied by a version of MUSER with strikeouts and underlines indicating the proposed changes.[2] In the proposed changes, the Look-Back Term's strikeouts and underlines indicated a change from four years to two, while the filing deadline provision was untouched. ECF No. 22-1 at 13, 15. Additionally, MUSER contains an Appendix with a document entitled “Notice of Procedural Safeguards, ” which is used to instruct the public about the rights guaranteed under MUSER, and it was also revised to reflect the proposed changes. The Notice of Procedural Safeguards contained strikeouts and underlines that corresponded to the proposed change to the Look-Back Term from four years to two years:

The due process hearing request must allege a violation whether a State or federal cause of action under the IDEA that happened not more than four two years before you or the SAU knew or should have known about the alleged action that forms the basis of the due process hearing request.

         ECF 22-1 at 17. The Filing Limitation was addressed in the “Due Process Hearing Procedure” section of the Notice of Procedural Safeguards. It indicated two nonsubstantive corrections and did not show any change to the four-year Filing Limitation:

You or the SAU must request an impartial hearing on a due process hearing request within -four years of the date you or the SAU knew or should have known about the issue addressed in the hearing request.

         ECF 22-1 at 19.

         Thus, both the MUSER Filing Limitation and the explanation of that rule in the Notice of Procedural Safeguards did not indicate any changes to the substance of the four-year Filing Limitation.

         Altogether, the public notice generated over 200 written and in-hearing comments. The commenters largely employed a comment form circulated by the Department. The form had three headings-“proposed change, ” “support, ” and “oppose.” For each proposed change, commenters could circle “support” or “oppose, ” and they could make additional comments. With respect to the due process hearing timeline, the comment sheet characterized the proposed change as follows: “§XVI(5)(A)(3) The statute of limitations for due process hearings will be changed to the federal standard of two years, Page 161.” See, e.g., ECF No. 71-1 at 12 (emphasis in original) (referring to the provisional adoption document). A commenter who turned to Page 161 of the provisional adoption proposal would find the revised two-year Look-Back Term, but not the four-year Filing Limitation, which appeared at page 171 and was unchanged.

         When the Legislature considered the MUSER revisions, it had access to the public notices, the accompanying versions of the rules, the public comments, and additional notice forms. Specifically, the Department provided Legislature-specific notice by way of a “Rule Making Fact Sheet” that summarized significant aspects of the proposed rule changes for the Legislature's consideration. With respect to the due process hearing timeline, the emergency rule change and the major substantive rule change fact sheets stated that “the statute of limitations for due process hearings will be changed to the federal standard of two years.” ECF No. 71-4 at 26, ECF No. 71-5 at 30. Neither fact sheet provided any additional explanation as to what was meant by “statute of limitations.”

         The Maine Legislature approved the MUSER changes in 2010. After receiving approval, the Department finally adopted the rules. See 5 M.R.S.A. § 8052. In doing so, the Department unilaterally changed the Filing Limitation-MUSER § XVI.13.E-from four years to two years. See Dep. of Educ., State of Me., 05-071 ch. 101, Maine Unified Special Education Regulation, Birth to Age Twenty, Final Adoption 2010, 162 (2010). As a result, when Ms. S. submitted her due process ...


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