United States District Court, D. Maine
MR. AND MRS. R., Individually and as Parents and Next Friends of A.R., a Minor, Plaintiffs
YORK SCHOOL DEPARTMENT, Defendant
RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF
H. Rich III United States Magistrate Judge.
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.
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.
Applicable Legal Standards
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).
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).
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).
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.
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).
Standard and Scope of Review
“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
Id. at 191 (citation and internal quotation marks
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).
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
Proposed Findings of Fact
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. 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.
Kindergarten Through Third Grade
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
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.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
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 ...