Catling v. York School Department

          ORDER ON DEFENDANT'S MOTION TO STRIKE/ RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS

          John C. Nivison, U.S. Magistrate Judge.

         In this action commenced pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., Plaintiffs challenge the decision of the state hearing officer denying Plaintiffs financial reimbursement for their daughter's private educational placement and services. (Complaint ¶¶ 1 - 7, ECF No. 1). The matter is before the Court on Defendant's partial motion to dismiss and motion to strike. (ECF No. 9.)

         Following a review of the relevant pleadings and after consideration of the parties' arguments, I deny the motion to strike and recommend the Court deny the partial motion to dismiss.

         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 ^[1]

         A. The Parties

         Plaintiffs are residents of York, Maine, and are the natural parents and legal guardians of T.C., a 16-year old student. (Complaint ¶ 4.) Defendant is a local education agency responsible for educating the children of York, Maine. (Id. ¶ 6.)

         T.C. has been identified as eligible for special education and related services since 2006, when she was in pre-school. (Id. ¶ 9.) The evaluations conducted by Defendant's psychologist revealed that T.C. had challenges in areas of attention, focus, and executive functioning skills, (ADHD), as well as some language skills. (Id. ¶¶ 12 - 13.)

         B. Fifth Grade: 2013 - 14 School Year

         In February 2014, Plaintiffs, concerned about T.C.'s academic performance in literacy and math, sought evaluations at the Boston Children's Hospital. (Id. ¶¶ 16 - 17.) In August 2014, Dr. Debra Waber, a neuropsychologist, found that T.C. had learning disabilities unlikely to be detected by standard psychoeducational testing. (Id. ¶¶ 18 - 23.)

         C. Sixth Grade: 2014 - 15 School Year

         During the fall of 2014, Defendant consulted with Victoria Papageorge, of Hyperion Learning, a learning disabilities consultant, concerning programming for T.C. (Id. ¶¶ 24 - 28.) Ms. Papageorge recommended a number of changes to T.C.'s IEP, including structured literacy programs from Lindamood-Bell Learning Processes and Sharma Math from the Center for Teaching and Learning Mathematics. (Id. ¶¶ 26 - 27.) Defendant later replaced Ms. Papageorge with a different consultant, Dr. Chris Kaufman, a neuropsychologist. (Id. ¶ 30.)

         After the IEP team maintained the same services in the February 2015 IEP, updating only the IEP goals, Plaintiffs requested additional assessments from the Boston Children's Hospital at public expense. (Id. ¶ 31.) Defendant denied the request. (Id. ¶ 32.) In April 2015, Plaintiffs hired Ms. Papageorge as an education consultant, who made certain recommendations. (Id. ¶¶ 33, 34.) T.C.'s special education teacher followed some, but not all, of Ms. Papageorge's recommendations. (Id. ¶ 35.)

         D. Seventh Grade: 2015 - 16 School Year

         In October 2015, Plaintiffs again requested an updated evaluation from Boston Children's Hospital at public expense. (Id. ¶ 37.) Defendant denied the request, explaining that it would conduct its own assessments. (Id.) In December 2015, the IEP team reviewed the results of the academic evaluation, and the IEP also considered a report Ms. Papageorge prepared at private expense. (Id. ¶ 39.) In late 2015 or early 2016, Plaintiffs obtained additional testing from Boston Children's Hospital at private expense. (Id. ¶ 39.) The re-evaluation report endorsed T.C.'s program, but the report noted that T.C. was two to three grade levels behind in reading comprehension and math. (Id. ¶¶ 40 - 43.)

         In February 2016, the IEP team developed an IEP for the following year that did not include any goals or services to address T.C.'s language deficits identified in the Boston Children's Hospital re-evaluation; the district considered but rejected the results of the re-evaluation, concluding that the re-evaluation did not ...