United States District Court, D. Maine
Mr. and MRS. DOE, individually and as parents and next friends of JANE DOE, a minor, Plaintiff
CAPE ELIZABETH SCHOOL DEPARTMENT, Defendant
MEMORANDUM DECISION AND ORDER
E. WALKER, UNITED STATES DISTRICT JUDGE
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.
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
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).
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. 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).
Doe attended Cape Elizabeth schools from kindergarten into
her eleventh-grade year. 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.
Ninth Grade (2014-2015)
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.
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 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.
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.
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.
Tenth Grade (2015-2016)
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.
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.
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,
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.”
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. R. 305, 1435.
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.”
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.
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.
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.
the school was aware of the contours of the increasingly
volatile atmosphere in the Does' home throughout the
school year, the school ‘intervention
team'“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.
Eleventh Grade (2016-2017)
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.
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.”
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.
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.” 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.
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.
Determination Meeting 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
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.
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.
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. 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.” 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,
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.
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.
school scheduled the Step 2 IEP meeting for February 17,
2017. R. 967.
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.
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.” 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
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.
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.
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.
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.,
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.”Id. Additionally, Mr. Doe
notified CEHS that the Does would be seeking