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Doe v. Cape Elizabeth School Department

United States District Court, D. Maine

April 29, 2019

Mr. and MRS. DOE, individually and as parents and next friends of JANE DOE, a minor, Plaintiff



         Plaintiffs Mr. and Mrs. Doe, individually and as parents and legal guardians of Jane Doe, appeal from a decision of the Maine Department of Education (“MDOE”) issued pursuant to 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. §§ 7001 et seq. At the close of the Department of Education Due Process Hearing, the hearing officer found in favor of the Defendant, Cape Elizabeth School Department, and denied Plaintiffs' request for reimbursement of the costs associated with Plaintiffs' unilateral placement of Jane at two out-of-state private educational and therapeutic institutions. Following a review of the administrative record and after receiving argument from the parties in a hearing held on March 5, 2019, I AFFIRM the judgment of the hearing officer for the reasons discussed below.


         The aim of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education” that provides “special education and related services” tailored to the “unique needs” of the individual child and designed to “prepare [the child] for further education, employment, and independent living.” 20 U.S.C. §§ 1400(d)(1)(A), 1401(9); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203 (1982) (“Insofar as a State is required to provide a handicapped child with a ‘free appropriate public education,' we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”). Maine education law is to the same effect and empowers the Maine State Board of Education to “formulate[] policy and enforce[] the regulatory requirements of school administrative units.” Goodwin v. School Admin. Dist. No. 35, 721 A.2d 642, 645 (Me. 1998); 20-A M.R.S. §§ 401-A (empowering the Board to enforce regulatory requirements), 7201 (“All students must be provided with equal educational opportunities and all school administrative units shall provide equal educational opportunities for all children with disabilities.”), 7204 (providing that the state plan for education of students with disabilities “may not require services that exceed minimum federal requirements”).

         To ensure that every disabled student receives a free appropriate public education (“FAPE”), state and federal laws require schools to identify children who qualify as disabled or who the schools reasonably suspect may qualify as disabled, experience adversity in educational performance due to their disability, and “need special education and related services by reason of the disability.” Mr. I. ex rel. L.I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 13-14 (1st Cir. 2007). When these circumstances are evident with respect to a particular child, a school must evaluate the child to determine if the child is eligible for statutory benefits, and, if so, develop a customized individual education plan (“IEP”) designed to provide the child with a “level of educational benefits commensurate with a FAPE.” C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008).

         If a family believes the school has failed to identify a child as qualifying for special education services or is otherwise failing to provide a FAPE and those concerns are not resolved by the school, the parents or guardians may request an impartial due process hearing before a hearing officer acting on behalf of the state educational agency. 20 U.S.C. § 1415(f)(1)(A); 20-A M.R.S. § 7207-B.[1] Families or school districts “aggrieved by the findings and decision” of the hearing officer may challenge the same in state superior court or federal district court. 20 U.S.C. § 1415(i)(2)(A); 20-A M.R.S. § 7207-B(2)(B).


         Jane Doe attended Cape Elizabeth schools from kindergarten into her eleventh-grade year.[2] Jane attended school on a consistent basis and was a strong student, but as reported by her parents, began to display oppositional behaviors including “behavioral outbursts and defiance” when she was four or five years old. R. 2627, 2677. Her father reported that the frequency of these volatile behaviors “intensified since [Jane] hit puberty.” Id. at 2677.

         I. Ninth Grade (2014-2015)

         During her ninth-grade year at Cape Elizabeth High School (“CEHS”), Jane performed well academically - she enrolled in many honors classes and earned an unweighted grade point average (“GPA”) of 91.85. R. 889. In addition to her coursework, Jane participated in the school swim team, tennis team, and chess club. R. 890. Her guidance counselor and parents reported no disciplinary problems at school. R. 890, 2629.

         In contrast to her academic success, her parents reported an uptick in “behavioral outbursts and . . . escalating behaviors” at home. R. 2488. In a progress note, one of Jane's treating physicians noted that the Does indicated that Jane experienced “extreme fluctuations in mood” and had even made threats to run away from home or call the Cape Elizabeth police on the Does. Id. On January 26, 2015, the Does requested a crisis assessment at Sweetser[3] due to Jane's reported “increasing irritability, oppositional behaviors and moodiness” in relation to her refusal to fill out an application for boarding school. R. 2627. The crisis assessment evaluator indicated Jane “presents as cooperative and friendly” and recorded Jane's statements that “she does not fit in with her family, ” but also noted a “history of poor social skills, low tolerance for frustration, impulsivity and verbal aggression toward others.” Id. The evaluator concluded Jane was “not unsafe at home and [did] not need a higher level of care.” Id. Jane was not admitted following the crisis assessment. Id.

         Near the end of ninth-grade, the Does enrolled Jane as a residential student at the Hyde School in Bath, Maine, but removed her after about six weeks because the school did not meet the Doe's expectations regarding discipline. R. 3167.

         Jane returned to CEHS and finished her ninth-grade year with significant academic success. R. 889, 3167. At the close of the year, Jane had been absent only once (other than her time spent at Hyde), tardy without excuse twice, and dismissed early seven times for various reasons ranging from doctors' appointments to “tour.” Id. at 1090, 2168-69.

         II. Tenth Grade (2015-2016)

         Jane's academic achievements continued through her tenth-grade year. She once again enrolled in various honors classes as well as one Advanced Placement statistics class. R. 904. At the close of her tenth-grade year, she earned an unweighted GPA of 89.32. R. 904, 1058. As in her freshman year, Jane's teachers reported that she was a pleasant and hardworking pupil. R. 4312, 4314.

         However, Jane's relationship and interactions with her parents became more tumultuous during her tenth-grade year. During the 2015-2016 school year alone, the Does (and once, Jane) called the Cape Elizabeth Police on four occasions, R. 2881, 2883, 2886, 2888, and Jane underwent five crisis assessment evaluations at Sweetser. R. 2632, 2638, 2643, 2669, 2677. In response to these familial tensions, Jane began meeting with Elizabeth Murphy-Lewis, a school social worker at CEHS, R. 1213; 3894, and the Doe family began meeting with a family therapist, Tom Fitzgerald. R. 2405.

         On multiple occasions, Jane's parents sought to have Jane “placed in a facility, ” but medical practitioners repeatedly determined that Jane did not meet the criteria for hospitalization. R. 2424; see also R. 2638 (indicating that after conducting a crisis assessment, a Sweetser caseworker concluded that Jane met “all criteria to remain home with her parents”); 2884-85 (recording that when a Sweetser caseworker told the Does that “she did not feel that [Jane] met the criteria for an emergency admission, ” the Does “became upset and told [the caseworker] that they just can't handle [Jane] anymore”); 2886, 895 (recording that the Does told responding officers that they “wanted their daughter taken somewhere” although Jane was later determined to not meet the criteria for hospitalization); 2675, 2889-90 (recording that after Jane returned unexpectedly from staying at a friend's house, the Does called the police, Ms. Doe insisting that they “wanted [Jane] removed and that she didn't care where she went but that she could not be at their house, ” ultimately resulting in the police persuading Jane to go to the hospital voluntarily “as the parents were adamant that she go to the hospital immediately, ” but noting that Jane was not admitted as she was “at low-risk for hurting herself or others”). However, on one occasion, Jane was admitted to a Sweetser Crisis Stabilization Unit in Saco “due to serious family conflict during which she made suicidal statements, ” but was released after three days. R. 2726, 2736, 2871.

         The record indicates CEHS was aware of the conflict in the Doe family and provided academic support throughout. For example, when Jane was admitted to the Saco Crisis Stabilization unit, the Director of School Counseling at CEHS forwarded homework assignments to Sweetser for Jane to complete. R. 1210. On March 14, 2016, Jane's CEHS teachers were notified via email that “she is having significant personal and family issues at this time that may impact her academics. She will attempt to speak with you on a case by case basis for assignments that are missing or late.” R. 1222.

         In late March 2016, the Does obtained an assessment of Jane from psychologist Dr. Francoise Paradis. R. 894. As part of this evaluation, Dr. Paradis interviewed not only Jane, but also Mr. and Mrs. Doe and Jane's CEHS social worker, Ms. Murphy-Lewis. Id. Dr. Paradis noted that “[t]he only area of difficulty [Jane] has is within the family” and attributed Jane's negative behaviors “to the pressure she feels from her parents' demands that are in conflict with normal adolescent development as she struggles to form her own identity.” R. 901-02. In Dr. Paradis's assessment, Jane was a “strong, happy young woman who is having some mild depression and anxiety as a reaction to her home situation.” R. 902. While Dr. Paradis diagnosed Jane with “Adjustment Disorder with disturbance of mood and conduct” as well as “Generalized Anxiety Disorder, ” Dr. Paradis noted there was “no evidence of any other mental illness.” Id. Dr. Paradis summarized her view of the conflict between Jane and her parents: “Her parents seem to have pathologized what in most homes would be considered normal teenage behavior or rebellion.” R. 901. Mr. Doe testified that this report was not provided to CEHS until February 2017 - nearly one year after it was completed.[4] R. 305, 1435.

         As the winter semester continued, Jane's teachers and CEHS administrators expressed some concern regarding Jane's academic performance due to her absences. R. 1223. In response to those concerns, Ms. Murphy-Lewis emailed Jane's teachers and requested that Jane be allowed a grace period to improve her grades. R. 1226. Ms. Murphy-Lewis explained that “[Jane] ha[d] been experiencing a great deal outside of school” and expressed her belief that Jane “would benefit from a bit of flexibility and added support on our part.” Id.

         On May 21, 2016, familial tensions once again erupted, and Jane was admitted to the Sweetser Crisis Stabilization Unit (“CSU”) in Saco until May 31, 2016. R. 2758-2813. CEHS was aware of this absence and Ms. Murphy-Lewis visited Jane in the Saco CSU to discuss the school work Jane was missing and her ability to complete it before the end of the school year. R. 296. When corresponding with Jane's teachers, Ms. Murphy-Lewis referred to the cause of Jane's absence as “an emergency situation.” R. 1238.

         Once discharged from Sweetser, Jane lived in a rented home with her aunt. R. 3204. Jane returned to CEHS and Ms. Murphy-Lewis and Jane's teachers worked with her to complete her tenth-grade year. R. 1237-38. Jane took her AP statistics exam and passed it. R. 297.

         At the close of the year, Jane had 15 excused absences (12 of which were due to “medical conditions” and her placement at Sweetser), 1 unexcused absence, 14 excused tardies, and was dismissed early 10 times. R. 1090, 2169-71. A review of the school's Daily Attendance Report indicates that the Does reported many of her tardies and dismissals as excused for doctor's appointments. R. 2169-71.

         Although the school was aware of the contours of the increasingly volatile atmosphere in the Does' home throughout the school year, the school ‘intervention team'[5]“saw no adverse impact at school” and “decided not to refer her for special education.” Def.'s Memo. 7 (ECF No. 19, #104); R. 4312. Jeffrey Shedd, the principal of CEHS and a member of Jane's ‘intervention team' testified: “Our sense at the time was that [Jane's] issues were largely at-home issues. At school she presented throughout her sophomore year as the same very sweet, well-behaved, compliant student that she'd always been.” R. 4312. Sweetser caseworkers similarly noted that up until this point, “[Jane] ha[d] no [history] of emotional dysregulation or behavioral issues within the school environment” and further noted that the Does “report[ed] that [Jane] has never been in trouble for aggression or violence.” R. 2697.

         III. Eleventh Grade (2016-2017)

         In the summer before eleventh grade, Mr. and Mrs. Doe separated and Mr. Doe moved into a rented home in Cape Elizabeth. R. 3199, 3206. Jane moved in with Mr. Doe. R. 3206. Jane returned to CEHS for her junior year but began to complain of significant anxiety regarding school attendance. R. 2592. On September 8, 2016, she reported to a nurse practitioner at her doctor's office that she felt “a lot of pressure” and “very judged” while at school. Id. Jane's attendance at CEHS began to decline and although the clear majority of her absences were excused by the Does, her teachers took note. R. 2171-72. By September 13, 2016 - at which point Jane had been absent two days and dismissed early once - two of Jane's teachers expressed concerns over her absences and “how much [schoolwork] she ha[d] missed already!” R. 1247; 2171. On September 15, 2016, another one of Jane's teachers inquired about her absences to CEHS's Director of School Counseling. R. 1250.

         On September 16, 2016 - just eleven days after school started - Jane was involved in a car accident. R. 2582. She was diagnosed with a concussion and was determined to be in the “red zone.” R. 2583. Jane's doctor ordered her to rest and “not attend school.” Id. Jane returned to school after a two-day absence due to her concussion, but thereafter was consistently seen in the nurse's office for complaints stemming from the concussion. R. 1053. On some days, Jane visited the nurse's office three or four times with physical complaints. Id. However, beginning on September 30, 2016, Jane's complaints to the school health office began to transition from concussion-related symptoms to those of “emotional concern.” Id.

         During this time, Jane was referred by her treating physicians to a new psychiatrist, Dr. Bowker-Kinley, due to complaints of anxiety-induced hives. R. 2587. On September 19, 2016, Dr. Bowker-Kinley diagnosed Jane with Generalized Anxiety Disorder. R. 2585. Ms. Murphy-Lewis was in touch with Dr. Bowker-Kinley and by October 10, 2016, was generally aware of Jane's GAD diagnosis, although she had not received confirmation of a formal diagnosis. R. 300, 3979, 3982.

         In response to Jane's increasingly common absences and expressions of anxiety, on October 10, 2016, Ms. Murphy-Lewis sent an email to a CEHS social worker stating that Jane “has been struggling to get to school” and that she wanted to “initiate a 504.”[6] R. 1258. Up until this point in the schoolyear, Jane had been absent from school seven times, but only one of those absences had been unexcused. R. 2171-72.

         On October 10, 2016, Jane reported lingering symptoms from her concussion to her psychiatrist, Dr. Bowker-Kinley. R. 2623. During this same appointment, Jane and her psychologist discussed Jane's desire to transfer schools, but the psychologist “reiterated . . . that [she] did not feel leaving the current school district was a good choice, [and] that her school district is certainly capable of offering her the support and accommodations that she needs to be successful at school.” R. 2622. During this appointment, Mr. Doe reported to Dr. Bowker-Kinley that “concussion and health issues have been driving conflicts around school attendance.” R. 2623.

         The 504 Determination Meeting[7] was held on November 10, 2016 and was attended by Mr. and Ms. Doe as well as Ms. Murphy-Lewis, four of Jane's teachers, Jane's guidance counselor, Principal Shedd, and Assistant Principal Carpenter. R. 938. The 504 paperwork summarized the school's concerns: “[Jane] has been diagnosed with anxiety disorder. She is under treatment. While academically capable, [Jane]'s condition interferes with her ability to attend school.” Id. The team found Jane eligible due to her “anxiety disorder” and crafted a plan for accommodating her disability under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“504 Plan”), an approach that is distinct from the formulation of an IEP under the IDEA. R. 941-43. The 504 Plan included assistance such as tutoring, allowing Jane to leave class as needed to see her Social Worker or the school nurse, and prioritizing her various assignments.[8] Id.

         On November 14, 2016, Dr. Bowker-Kinley faxed a letter to CEHS stating that she had diagnosed Jane with “Generalized Anxiety Disorder” and further indicating that in her opinion, “the symptoms and challenges associated with the . . . diagnosis interfere with the young person's ability to fully participate in their education, ” such that she “would qualify for, and benefit from, a 504 plan at school.” R. 948. Ms. Murphy-Lewis later testified that this was the first time CEHS received documentation of a formal mental health diagnosis from one of Jane's providers. R. 3982.

         Near the end of November, CEHS administrators testify they made a truancy referral against the Does to the Department of Health and Human Services (“DHHS”); however, DHHS declined to open any proceedings against the Does. R. 1310, 4197.

         On December 2, 2016, because CEHS was not able to implement the 504 Plan due to Jane's failure to attend school regularly, Ms. Murphy-Lewis sent an email to the head of the CEHS special education department indicating her desire to refer Jane for a Special Education Evaluation.[9] R. 304, 1314. On December 6, 2016, CEHS staff met with the Does to explain the special education referral process and to obtain consent for Jane's evaluations. R. 949. Ms. Doe signed the consent form, which indicated she had “received the statement of procedural safeguards attached to [the] consent form.”[10] R. 951. This form also indicated that the deadline to hold an Individualized Education Program (“IEP”) Team Eligibility Meeting was forty-five school days upon receipt of consent, or, in this case, February 27, 2017. R. 949, 3573.

         After winter break, Jane's pattern of poor attendance once again resumed. R. 2174. In January 2017, the Does began to explore other options for Jane, including an intensive residential program at McLean Hospital in Massachusetts. R. 3251-53. The Does also hired Margie Shaffel, an educational consultant who “works closely with McLean, ” to serve as a resource for placement information for Jane. R. 1410.

         In the meantime, the school psychologist, Rosemary Kooy, began working on Jane's special education evaluation and reached out to the Does to schedule a parent interview. R. 1426-30. By early February, Ms. Kooy had sent out the parent rating scales, conducted an interview with the Does, and interviewed Ms. Murphy-Lewis. R. 405, 1427, 1436. On February 7, 2017, Ms. Kooy contacted Jane via email to set up a time for testing, an interview, and observation. R. 1456. Jane did not reply to Ms. Kooy's email, so Ms. Kooy contacted Mr. Doe directly. R. 1460. Mr. Doe responded and confirmed Jane's resistance to testing, indicated that he would discuss Ms. Kooy's request with Jane, but concluded that he was “not optimistic” Jane would comply. Id.

         The school scheduled the Step 2 IEP meeting for February 17, 2017. R. 967.

         On February 10, 2017, McLean Hospital accepted Jane for voluntary admission. R. 1477. However, on February 14, 2017, when Mr. Doe informed Jane that she would be admitted to McLean that day, Jane “became hysterical and refused to accompany him there.” R. 2896. Mr. Doe called the Cape Elizabeth Police who eventually handcuffed Jane because she refused to cooperate with the responding officers. Id. The police escorted her to Maine Medical Center. Id. Jane was eventually transferred from Maine Medical Center to Spring Harbor and admitted for her first inpatient hospitalization. R. 981.

         On February 14, 2017, Ms. Murphy-Lewis spoke with the Does and then memorialized their conversation via email. R. 974. In her email, Ms. Murphy-Lewis reiterated that the CEHS team had met that morning to discuss Jane's Special Education testing, noting that “[d]ue to student absences, psychological and academic testing have yet to be completed.”[11] Id. Furthermore, she repeated the team's proposal to “extend the IEP evaluation process and meet within 15 school days from [February 14, 2017]” considering Jane's absences and impeding admission to McLean. R. 974, 1457, 1485. The record contains no objection from either of the Does to the extension request.

         Spring Harbor discharged Jane on February 23, 2017. R. 987. Upon discharge, the Does arranged for Jane to be immediately transferred to a wilderness program called Trails Carolina in North Carolina. R. 991, 993. The Does notified CEHS of this placement via email on February 24, 2017, and relayed that Jane would remain at Trails for ten to twelve weeks. R. 411.

         On March 3, 2017, Ms. Murphy-Lewis sent the Does a “follow-up” email to “confirm that due to the placement of Trails Carolina, [CEHS] will be suspending the process to refer to special education services until [Jane] returns to us upon her completion of the program.” R. 413. In this email, Ms. Murphy-Lewis also requested copies of any evaluations or assessments conducted on Jane so the assessments could be “a part of our special education referral process when it resumes when [Jane] returns to Cape Elizabeth.” R. 1504. Ms. Doe responded to this email and did not contest the suspension of the special education referral and confirmed that she would “pass along . . . any helpful information . . . receive[d] from Trails.” R. 413, 1503.

         After receiving no information from Trails, Ms. Murphy-Lewis reached out to the Does a second time on April 11, 2017, and reiterated her request for copies of any assessments or evaluations. R. 1507. When Ms. Murphy-Lewis did not hear back from the Does, she called them and during their conversation, the Does informed her that they intended to place Jane at a therapeutic boarding school following her discharge from Trails. R. 1508.

         On May 4, 2017, Mr. Doe emailed CEHS's special education director to reaffirm the Does' decision to place Jane at Vista Sage in Sandy, Utah, a therapeutic boarding school, following Jane's graduation from the Trails program. R. 1511. In this email, Mr. Doe provided a copy of a psychological evaluation completed by Dr. Carlyn Daub, Ph.D., [12] and stated his conclusion - which he affirmed was supported by Dr. Daub and the staff at Trails Carolina - that Jane “cannot appropriately return to a public-school placement or any other less restrictive placement, with or without specialized services, at this time.”[13]Id. Additionally, Mr. Doe notified CEHS that the Does would be seeking ...

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