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Morrison v. Perry School Department

United States District Court, D. Maine

July 11, 2019

JEFFREY MORRISON, Plaintiff
v.
PERRY SCHOOL DEPARTMENT, Defendant

          RECOMMENDED DECISION ON ADMINISTRATIVE RECORD

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         Plaintiff, as a parent of JM, a minor, alleges Defendant, JM's school district, violated due process and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. in connection with JM's education plan. (Complaint, ECF No. 1.) Plaintiff appeals from the results of a due process hearing under the IDEA and state law, in which proceeding the Hearing Officer found in favor of Defendant.

         The matter is before the Court on Plaintiff's challenge to the Hearing Officer's decision on the administrative record. (ECF No. 27.) Plaintiff raises both substantive and procedural challenges.

         Following a review of the administrative record and after consideration of the parties' arguments, I recommend the Court grant judgment in favor of Defendant.

         Statutory Background

         Under the IDEA, each state “must provide a free appropriate public education-a FAPE, for short-to all eligible children” in order to receive certain federal funds. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 993 (2017). A FAPE includes “special education and related services . . . provided in conformity with [an] individualized education program, ” or an IEP for short. 20 U.S.C. § 1401(9)(D). An IEP is “[a] comprehensive plan prepared by a child's ‘IEP Team' (which includes teachers, school officials, and the child's parents) . . . drafted in compliance with a detailed set of procedures.” Endrew F., 137 S.Ct. 988, 994 (2017). An IEP must include, among other requirements, “a statement of the child's present levels of academic achievement and functional performance, ” 20 U.S.C. § 1414 (d)(1)(A)(i)(I)-(III), “a statement of measurable annual goals” id. § 1414 (d)(1)(A)(i)(II), and “a description of how the child's progress . . . will be measured and when periodic reports . . . will be provided.” Id. § 1414 (d)(1)(A)(i)(III).

         “If parents are concerned that their child is not receiving a FAPE, they can file a complaint with the local educational agency.” Pollack v. Reg'l Sch. Unit 75, 886 F.3d 75, 79 (1st Cir. 2018) (citing 20 U.S.C. § 1415(b)(6)(A)). “They can argue that their child is being denied a FAPE substantively, on the grounds that his or her IEP lacks certain special education or related services.” Id. at 80 (citing 20 U.S.C. 1415(f)(3)(E)(i)). “And they can argue that their child is being denied a FAPE due to procedural violations that, for example, significantly impede the parents' opportunity to participate in the IDEA decisionmaking process.” Id.(citing 20 U.S.C. § 1415(f)(3)(E)(ii)(II) (internal quotations and modifications omitted). Filing a complaint begins a series of administrative procedures, including an “impartial due process hearing” before the state educational agency, the Maine Department of Education. 20 U.S.C. § 1415(f)(1)(A), (g); 20-A M.R.S. § 7207-B; 05-071 C.M.R. ch. 101, § XVI. Following the educational agency's final decision on the complaint, an “aggrieved party” may file an action in state or federal court seeking relief from the decision. 20 U.S.C. § 1415(i)(2)(A).

         Factual and Procedural Background

         A. Grade Three: 2014-15 School Year

         Before March 2015, JM received special education and related services under a “Speech/Language Impairment” classification. (R. 1009, 1011.)[1] JM's IEP included twice weekly thirty-minute sessions with a speech pathologist and daily support services with a special education teacher. (R. 1009.)

         On March 10, 2015, the IEP team met for an annual review and discussed updates to JM's IEP. (R. 1008 - 09.) The team decided to modify JM's IEP, retaining the twice-weekly thirty-minute speech pathologist sessions, removing JM from monitoring status, adding one-hour daily instruction in a “resource room, ” and adding certain classroom and testing accommodations. (R. 1009.) The IEP team questioned whether the speech and language category was the correct classification for JM and determined that JM's parents would pursue an evaluation for Attention Deficit Hyperactivity Disorder (ADHD). Id.

         On June 24 and July 29, 2015, Jennifer Curran, Ph.D., evaluated JM at Developmental Pediatrics in Bangor. (R. 1039 - 49.) Dr. Curran determined that JM “is exhibiting attentional dysregulation that is consistent with a diagnosis of ADHD, Inattentive Type.” (R. 1047.)

         B. Grade Four: 2015-16 School Year

         On September 23, 2015, the IEP team met to reevaluate JM's IEP. (R. 1050.) The team modified the IEP to replace the Speech/Language Impairment classification with an “Other Health Impairment” classification due to the ADHD. (R. 1051, 1057.) Plaintiff requested a one-to-one educational technician for JM, but the other members of the IEP team did not agree that the addition was warranted. (R. 1052.) The team did not modify the special education and support services in the IEP. (R. 1051.)

         On December 3, 2015, the IEP team met to discuss concerns that Plaintiff raised by email. (R. 1068.) Plaintiff again inquired about an after-school tutor and a one-on-one educational technician to support JM throughout the day, but the remainder of the IEP team (the classroom teacher, special education teacher, speech language assistant, speech language pathologist, and JM's mother) determined that the services were not required. (R. 1069.) Plaintiff also inquired about perceived discrepancies between JM's reading grade level on his report card and a testing metric. (R. 1071.) Plaintiff further asked to have an advocate/tutor participate in the meeting; after JM's mother objected, Plaintiff agreed to proceed rather than be forced to postpone the meeting. (R. 1149 - 53.)

         The IEP team held a follow-up meeting on January 14, 2016. (R. 1073.) Plaintiff expressed concern about JM's performance on certain tests. (R. 1077 - 79.) Plaintiff and the advocate/tutor did not agree with the IEP team regarding the additional services they requested for JM. (R. 1074, 1151 - 53.) The IEP team agreed to consider Plaintiff's request for extended year services when the team met again for JM's next annual meeting in March 2016.[2] (R. 1074, 1077.)

         On March 8, 2016, the IEP team met for the annual review of JM's IEP. (R. 1098.) Plaintiff and the advocate/tutor reiterated their requests for an after-school tutor, extended year services, and in-class assistance from an educational technician rather than out-of-class sessions. (R. 1099.) JM's mother reported that JM did not want or need a one-on-one educational technician, and the rest of the IEP team believed that it would constitute a more restrictive environment than the current services. (R. 1099 - 1100.) The team retained the twice weekly thirty-minute sessions with a speech pathologist and modified the IEP to reflect JM's performance and goals, including a goal in the academic area of reading to be addressed by hour long sessions with a special education teacher five times per week.[3] (R. 1099, 1104 - 12.)

         On May 10, 2016, the IEP team met to consider additional concerns Plaintiff raised. (R. 1124.) Plaintiff and the advocate/tutor requested individualized instruction for writing, but the rest of the team did not agree. (Id.) The classroom teacher reported that JM's writing was comparable to grade level peers. (Id.) The team updated the IEP to include additional accommodations including an agreement to mark work completed in the resource room, an agreement to mark both the original and new grade whenever JM was allowed to redo the work, and to provide JM with verbal reminders to write dates on papers. (R. 1124, 1139.)

         On July 5, 2016, Plaintiff filed a complaint with the state educational agency. (R. 1148.) On August 25, 2016, after receiving documents and conducting two interviews, the complaint investigator found two violations of procedural regulations. (R. 1151 - 53.) Plaintiff had complained about the IEP team's response to the advocate/tutor he brought to the meetings beginning in December 2015. (R. 1150 - 51.) The investigator found that Defendant properly allowed the advocate/tutor to participate in the more recent meetings, but violated MUSER § VI.2B(5) and (8) by prohibiting the advocate/tutor from participating in the first meeting on December 3, 2015. (R. 1151.) The investigator also found a procedural violation when Defendant declined to modify records from IEP team meetings, which records Plaintiff disputed, because Defendant had failed to notify Plaintiff of his right to a hearing on the issue as required under 34 CFR 300.619. (R. 1152 - 53.) The state agency ordered Defendant to provide Plaintiff with written assurances that it would not repeat the violations in the future. (R. 1151 - 53.)

         C. Grade Five: 2016-17 School Year

         On February 3, 2017, Plaintiff filed another complaint with the state education agency. (R. 1228.) While the complaint was pending, on March 30, 2017, the IEP team met for another annual review. (R. 1209.) Plaintiff and the advocate/tutor again sought 100 percent placement in the classroom with the assistance of an educational technician, an after-school tutor, and extended year services; they also asked to add to the IEP a goal and special instruction in the academic area of writing, but the rest of the team disagreed. (R. 1210.) The only changes the team made to the IEP were updates to JM's performance and goals. (R. 1210 - 25.)

         On April 7, 2017, after receiving documents and conducting six interviews, the complaint investigator issued a report addressing Plaintiff's February 3 complaint. (R. 1228.) The investigator found no violations regarding JM's advancement or progress toward the established goals, Plaintiff's requests for extended year services, Plaintiff's requests for a goal and special instruction in the academic area of writing, and the alignment of the goals to state standards. (R. 1239 - 34.) The investigator found the sixty-minutes per day sessions in the resource room to be a violation of the requirement that the student be placed in the least restrictive environment because the special services amounted to “guided study hall, ” which could have been provided in the classroom. (R. 1240 - 41.) He also determined that Defendant measured JM's performance in subjective terms and thus was in violation of the requirement that IEP goals be objectively measurable and that quarterly reports be provided to parents; the investigator explained that “without objective data of this kind, the Student's father was unable to gauge the meaning and validity of the progress reports.” (R. 1242 - 43.) The investigator directed Defendant to conduct professional training for its employees in the writing of measurable IEP goals, to reevaluate JM, and to modify the IEP if JM was still eligible for special education services. (R. 1244.)

         After the IEP team met again for further discussion on May 8, 2017, (R. 1258), with the consent of JM's mother, Defendant arranged for new evaluations. (R. 1246 - 57.) Keith Hansen, Psy.D., was scheduled to conduct one part of the evaluation on May 15, 2017, but Plaintiff arrived at school and removed JM for the day. (R. 1266.) The Maine Department of Education reviewed Defendant's compliance documentation and ...


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