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Mr. and Mrs. R. v. York School Department

United States District Court, D. Maine

May 24, 2019

MR. AND MRS. R., Individually and as Parents and Next Friends of A.R., a Minor, Plaintiffs
v.
YORK SCHOOL DEPARTMENT, Defendant

          RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

          John H. Rich III United States Magistrate Judge.

         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., plaintiffs Mr. and Mrs. R., the parents of student A.R. (“Parents”), challenge rulings by a Maine Department of Education hearing officer (“Hearing Officer”) that defendant York School Department (“York”) offered A.R. an appropriate individualized education program (“IEP”) and public school placement for his fifth-and sixth-grade school years, as a result of which they are not entitled to reimbursement from York of the cost of their unilateral placement of A.R. at the Landmark School (“Landmark”), a special-purpose private school in Manchester-by-the-Sea, Massachusetts. See Complaint (ECF No. 1) ¶¶ 1-2, 7, 36, 53; Plaintiffs' Memorandum of Law (“Parents' Brief”) (ECF No. 15) at 1, 18-35. York defends its IEP offers and placements for both years. See Defendant York School Department's Memorandum of Law (“York's Response”) (ECF No. 21) at 1-2.

         After careful review of the administrative record, and with the benefit of oral argument held before me, I recommend that the court adopt the following findings of fact and conclusions of law and deny the Parents' request for relief.

         I. Applicable Legal Standards

         A. IDEA

         1. The IDEA is a “comprehensive statutory scheme” that Congress enacted to ensure that all children with disabilities are accorded a free appropriate public education (“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).

         2. As a condition for receiving federal funds, states are required to provide a FAPE to all disabled children. See, e.g., 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 IEP for each disabled child. D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012). 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).

         3. 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 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 of 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. Mass. Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993) (citation and internal quotation marks omitted). “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. ex. rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017); Johnson v. Boston Pub. Schs., 906 F.3d 182, 194 (1st Cir. 2018) (same).

         4. 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 parent may challenge a hearing officer's IDEA decision regarding a school district's compliance with procedural requirements, substantive requirements, or both. See, e.g., Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). In this case, the Parents raise the second type of challenge.

         6. 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

         7. “District courts considering challenges to administrative IDEA decisions apply an intermediate standard of review that [the First Circuit has] called ‘involved oversight.'” Johnson, 906 F.3d at 190-91 (citation omitted). Under that standard,

[a] district court reviews the administrative record, which may be supplemented by additional evidence from the parties, and makes an independent ruling based on the preponderance of the evidence. However, that independence is tempered by the requirement that the court give due weight to the hearing officer's findings. As a result, a district court's review falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard.

Id. at 191 (citation and internal quotation marks omitted).

         8. The First Circuit and other courts have suggested that the level of deference due to the hearing officer's findings 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 Cty. 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[, ]” “for judicial review to have any meaning, beyond a mere review of state procedures, the courts must be free to construe term ‘educational' [in the 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. Dep't of Educ., 736 F.2d 773, 792 (1st Cir. 1984), aff'd 471 U.S. 359 (1985).

         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); Me. 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.”).

         II. Proposed Findings of Fact

         1. This case involves A.R., now 13 years old, who resides with his parents, Mr. and Mrs. R., in York, Maine. Complaint ¶ 8; Answer (ECF No. 9) ¶ 8; Testimony of [Mrs. R.] (“Mrs. R.”), Administrative Record (“R.”) at 4409-10.[1] A.R. attended York schools full-time from kindergarten until the Parents unilaterally enrolled him at Landmark in June 2016, following his fourth-grade year. Mrs. R. at 4508, 4524-25.

         A. Kindergarten Through Third Grade

         2. As early as preschool, A.R. showed signs of a learning disability, id. at 4410-11, and York first identified him as a student eligible for special education services pursuant to the IDEA in June 2012, at the conclusion of his kindergarten year (2011-12), Complaint ¶ 12; Answer ¶ 12. While a 2011 psychoeducational assessment revealed that A.R. had cognitive scores in the average to high-average range, R. at 141, 143, he had “difficulty recognizing letters in his name[, ]” id. at 130.

         3. During first grade (2012-13) and second grade (2013-14), A.R. was provided with pull-out reading and math services, to which his IEP team added pull-out written language and social skills services in early 2013. Id. at 197, 202, 215. As of the end of first grade, A.R. continued to “struggle in the area of reading, even with the level of intensive services that have been given.” Id. at 256. Increasingly concerned, the Parents hired reading consultant Victoria Papageorge, M.Ed., M.S., of Hyperion Learning Services (“Hyperion”) in October 2013 to perform an independent evaluation. Id. at 276. Ms. Papageorge determined that A.R. had a rare type of dual-processing deficit, with weaknesses in both phonological (auditory) and orthographic (visual) processing, “significantly impacting [his] development of basic reading skills.” R. at 300; Testimony of Victoria Papageorge (“Papageorge”), R. at 4823, 4855. She observed A.R. to be “fragile and lacking self-confidence with his reading abilities, so that self-esteem has become an issue.” R. at 302.

         4. Ms. Papageorge recommended that A.R. receive an “integrated reading program which will stimulate both the auditory (phonological awareness and phonological memory) and visual processing realms (orthography) in order to move forward in reading.” Id. at 303. She specified the use of two research-based Lindamood-Bell reading intervention programs: LiPS to target A.R.'s phonological deficits, and Seeing Stars to target his orthographic deficits. Id. at 303-04. She noted that, “[d]ue to the severity of [A.R.'s] reading disability, he should receive direct reading instruction one-on-one with a highly qualified reading specialist or special education teacher trained in Lindamood[-]Bell Processes - 5 days a week/50 minutes.” Id. at 304.

         5. With the benefit of the Papageorge evaluation, A.R.'s IEP team convened on December 17, 2013, to determine his IEP for the end of second grade and the beginning of third. Id. at 329.[2] The team agreed to categorize A.R. as a student with a Specific Learning Disability, id., and to provide him with 1:1 instruction in the LiPS and Seeing Stars programs for one hour and 45 minutes daily and social skills instruction for 90 minutes weekly, as well as providing 30 minutes weekly for his two special education teachers to meet and five hours annually for those teachers to consult with a reading specialist, id. at 338. The team determined that A.R. would be with nondisabled children (that is, mainstreamed) 66 percent of the time. Id. at 340. York retained Ms. Papageorge to serve as A.R.'s reading consultant. Id. at 2528.

         6. Christine Peskurich, who had been A.R.'s special education teacher since first grade, provided his 1:1 Seeing Stars instruction, and Michael Aucoin, a York speech and language pathologist, provided his 1:1 LiPS instruction. Testimony of Christine Peskurich (“Peskurich”), R. at 5260, 5266, 5270-71. In summarizing her consultations with Ms. Peskurich and Mr. Aucoin during A.R.'s second-grade year, Ms. Papageorge noted that A.R. had made “nice gains” and that both teachers were “well qualified and extremely conscientious in learning this program and the most effective ways to integrate it so that [A.R.] will progress.” R. at 2528-29. Testing performed in June 2014 indicated that A.R.'s Oral Reading Score Index and Total Word Reading Efficiency Index scores had increased since October 2013. Id. at 345. He was at grade equivalent 1.0 in oral reading rate, accuracy, and fluency, 1.2 in sight word efficiency, 1.5 in phonemic decoding efficiency, and 2.7 in comprehension. Id.

         7. During third grade (2014-15), A.R. again received Lindamood-Bell instruction from Ms. Peskurich and Mr. Aucoin. Peskurich at 5276-77. His IEP team met on December 16, 2014, for his annual review, increasing his specially designed 1:1 literacy instruction from 525 to 570 minutes weekly, reducing his social skills instruction from 90 to 30 minutes weekly given his significant improvement in that area, continuing the provision of 30 minutes of weekly consultation between his special education teachers and five hours annually between those teachers and a literacy consultant, and removing the reference in his IEP to LiPS and Seeing Stars curriculum alignment. R. at 2538-39, 2553-54. The team determined that A.R. would spend 67 percent of his time with nondisabled peers. Id. at 2554.

         8. In a June 2015 report, Ms. Papageorge recommended that A.R. continue to receive 1:1 instruction in LiPS and Seeing Stars and that Ms. Peskurich and Mr. Aucoin “integrat[e] the two programs in one time period, rather than [A.R.] receiving part of his lesson in the morning and the rest of the lesson in the afternoon.” Id. at 397. York reported in June 2015 that A.R. was progressing toward reading at grade level, although he did not yet meet that standard. Id. at 777.

         B. Fourth Grade

         9. Early in A.R.'s fourth-grade year (2015-16), York informed the Parents that it had terminated Ms. Papageorge's consultation services and contracted with Sherri Beall, the owner of Exeter Speech, Language & Education Associates, to provide the five hours of consultation services specified in A.R.'s IEP. R. at 2198; Testimony of Melissa Camire (“Camire”), R. at 5335, 5430. The Parents strongly opposed this change. R. at 2198. Ms. Beall has a master's degree in education and two New Hampshire certifications, one in special education and one in specific learning disabilities. Testimony of Sherri Beall (“Beall”), R. at 5141-42. She has experience with LiPS and specializes in Precision Teaching, a systematic measurement system in which a student's progress is charted to guide instructional decisions. Id. at 5145-47.

         10. During fourth grade, A.R. attended mainstream science, social studies, and math classes. Testimony of Jessie Phillips Rafferty (“Phillips Rafferty”), R. at 5440. 5507. Jessie Phillips Rafferty was his general education teacher, and Ms. Peskurich took over instruction in the LiPS program from Mr. Aucoin, implementing all of A.R.'s 1:1 programming in one 60-minute block per day with weekly consultations from Ms. Beall, including in the provision of Precision Teaching. Id. at 5441; Peskurich at 5695; Beall at 5152. As of January 2016, Ms. Peskurich no longer provided daily Seeing Stars lessons, although she did continue to provide that instruction periodically. Peskurich at 5784.

         11. In the fall of 2015, staff observed A.R. exhibiting some work avoidance behavior, including during his literacy-heavy math class. R. at 1996; Phillips-Rafferty at 5448-49. During a November 4, 2015, IEP team meeting, the team addressed this issue by amending A.R.'s IEP to add 30 minutes per day of in-class support in math by an educational technician. R. at 2663. York also offered social work services to address A.R.'s anxiety, but the Parents declined them because they felt that the source of his anxiety was his inability to read. Id. Ms. Phillips-Rafferty testified that, by late winter or early spring, the intervention of adding adult support was successful, enabling A.R. to access the regular math curriculum. Phillips-Rafferty at 5450-01.

         12. For A.R.'s triennial evaluation, York contracted for testing in October 2015 by Lauren A. Cook, Ph.D., a neuropsychologist. R. at 917, 933. Dr. Cook diagnosed A.R. with a Specific Learning Disability in reading as well as attention deficit hyperactivity disorder and generalized anxiety disorder. Id. at 927. Noting his difficulties with phonological processing, limited automaticity with word recognition, and reduced fluency, id., she recommended the use of “evidence based reading program(s) that are systematic, comprehensive, and multi-sensory[, ]” id. at 930.

         13. Dr. Cook recommended that A.R. have “a combination of separate and inclusive programming at this time[, ]” describing “opportunities for inclusion [as] imperative for friendship development, feeling a part of the school community, and for improving the overall quality of life.” Id. at 928.

         14. The IEP team reconvened on November 20, 2015, to develop an IEP for the end of fourth grade and the beginning of fifth grade. Id. at 2702. The Parents expressed concern that A.R. “still cannot read[, ]” causing him anxiety and low self-esteem, and could not access the general curriculum despite his intellectual potential. Id. at 2698. The IEP team increased the amount of consultation time between Ms. Beall and Ms. Peskurich to 20 hours per year to help Ms. Peskurich implement Precision Teaching, id., and provided for 450 minutes per week of specially designed reading instruction and 180 minutes per week of specially designed written instruction, id. at 2715. The team determined that A.R.'s least restrictive ...


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