Maine School Admin. Dist. No. 35 v. Mr. & Mrs. R.

• Decision Date: 18 December 2001
• Docket Number: No. 00-242-P-C.,No. 00-367-P-H.,00-242-P-C.,00-367-P-H.
• Parties: MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 35, Plaintiff v. MR. AND MRS. R., Defendants Mr. and Mrs. R., Plaintiffs v. Maine School Administrative District No. 35, Defendant
• Court: U.S. District Court — District of Maine

Page 15

176 F.Supp.2d 15

MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 35, Plaintiff v. MR. AND MRS. R., Defendants Mr. and Mrs. R., Plaintiffs v. Maine School Administrative District No. 35, Defendant

No. 00-242-P-C.

No. 00-367-P-H.

United States District Court, D. Maine.

December 18, 2001.

COPYRIGHT MATERIAL OMITTED

Melissa A. Hewey, Eric R. Herlan, Esq, Drummond, Woodsum & Macmahon, Portland, ME, for Maine School Administrative District No. 35, plaintiff.

Richard L. O'Meara, Murray, Plumb & Murray, Portland, ME, for Mr & Mrs R, Defendants.

MEMORANDUM DECISION ON MOTION FOR LEAVE TO SUPPLEMENT RECORD AND RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID M. COHEN, United States Magistrate Judge.

These consolidated actions are brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The complaint in Docket No. 00-367-P-H also asserts claims under the Rehabilitation Act, 29 U.S.C. § 794, and Maine law, specifically 20-A M.R.S.A. § 7001 et seq. The substance of the complaint in Docket No. 00-242-P-C has been dismissed pursuant to Fed.R.Civ.P. 41(a), with the issue of entitlement to an award of attorney fees and costs reserved until resolution of the substantive issues in Docket No. 00-367-P-H. Docket No. 25.¹ Maine School Administrative District No. 35 ("MSAD 35") seeks leave to supplement the administrative record. Defendant/Cross Appellant's Motion to Supplement the Administrative Record, etc. ("Motion to Supplement") (Docket No. 44). I grant the motion to supplement and recommend that the court adopt the findings of fact and conclusions of law set forth below.

I. The Motion to Supplement

MSAD 35 seeks leave to add to the record before the court the affidavit of its director of special education establishing that the student whose education is at issue in these cases graduated from high school on June 15, 2001, well after these actions were filed. Motion to Supplement at 1-2 & Affidavit of Carole A. Smith (attached thereto) ¶ 3. Mr. and Mrs. R. ("the parents") oppose this motion, contending that evidence of their son's graduation is irrelevant, and ask, in the alternative, that they be allowed to add further documents to the record. Plaintiffs' Objection to Defendant's Motion to Supplement Administrative Record, etc. (Docket No. 47) at 1, 8-9.

Leave to present additional evidence to the court in an IDEA proceeding should be granted only when that party provides "solid justification" for the supplementation of the administrative record which it seeks. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). Events that occur after the events that give rise to an IDEA appeal may render the issue for which relief is sought moot, thereby depriving the court of jurisdiction to rule on the merits of the claim. Thomas R.W. v. Massachusetts Dep't of Educ., 130 F.3d 477, 479 (1st Cir.1997). Graduation of the student is one such event. Id. Since the student's graduation here might render the parents' claims moot, evidence of that fact is highly relevant, and MSAD 35 has provided solid justification for its addition to the administrative record. However, the question whether the parents sought the graduation is not relevant. Accordingly, the motion for leave to supplement the record with Smith's affidavit is granted but the parents' request to submit additional information concerning a Pupil Evaluation Team ("PET") meeting at which such a request was allegedly made is denied.

II. Proposed Findings of Fact

1. The parents, and their son, S. R., reside in the district served by MSAD 35. Complaint (Docket No. 1) ¶ 5; Defendant's Answer ("Answer") (Docket No. 23) ¶ 5. During the 2000-01 school year, S. R., who was born on December 8, 1980, was a student at Marshwood High School, which is operated by MSAD 35. Special Education Due Process Hearing [Decision] ("Hearing Dec."), R[] v. Maine School Administrative District 35, included in Administrative Record, Volume V, at 1635.

2. MSAD 35 is the local education agency that is responsible under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., for providing a free appropriate public education to children with disabilities residing within its geographical borders. Complaint ¶¶ 1, 4; Answer ¶¶ 1, 4.

3. S.R. was eligible for special education services under the category of mental retardation and has been diagnosed with Downs Syndrome. Hearing Dec. at 1635. The 2000-01 school year was S.R.'s final year of eligibility for such services. Id.

4. Pursuant to an Individualized Education Plan ("IEP"), S.R. attended Marshwood during the 1999-2000 school year. Id. He received services each day at the school from 7:30 to 10:30 a.m. and thereafter was transported to Work Opportunities Unlimited ("WOU"), where he received services for the rest of the school day. Id. During this school year a behavioral management and support plan developed by S.R.'s Pupil Evaluation Team ("PET") was in effect. Id. at 1638.

5. A PET meeting on June 20, 2000 determined that an IEP for S.R. dated June 21, 2000 would be implemented for the 2000-01 school year. Administrative Record, Volume 1 (also labeled "Agency Index"), at 186, 189, 191. The IEP provided for six hours per day of vocational training through WOU with a special education teacher to visit the work site once a week, instruction in functional skills to be provided by WOU staff, a sign language consultation once a month at the work site, up to five hours per week of instruction in leisure and social skills at a non-work site by WOU staff, consultation once a month by a speech therapist and behavioral consultation as needed. Id. at 193.

6. Mr. and Mrs. R. disagreed with the placement set forth in the IEP. Id. at 159-60. On July 21, 2000 MSAD 35 requested mediation of this dispute. Id. On August 3, 2000 Mr. and Mrs. R. requested an administrative hearing. Id. at 1. A hearing officer was appointed on August 8, 2000. Id. at 4-5. A pre-hearing conference was held on August 25, 2000. Id. at 142.

7. At the pre-hearing conference the parties agreed to submit to the hearing officer for immediate decision the question of the "current educational placement" for purposes of the stay-put provision of the IDEA, 20 U.S.C. § 1415(j), which provides that "during the pendency of any proceedings ..., unless the State or local educational agency and the parents otherwise agree, the child shall remain in the thencurrent educational placement of such child." Id. The hearing officer ruled that the current educational placement for S.R. was the IEP that was in place for the 1999-2000 school year. Id.

8. On August 31, 2000 MSAD 35 filed the complaint that initiated Docket No. 00-242-P-C. Docket Sheet. That complaint sought injunctive relief to keep S.R. in programming outside Marshwood until the administrative hearing officer had issued a final decision. Complaint at 5. MSAD 35's request for a temporary restraining order was denied on September 1, 2000. Docket No. 10.

9. An administrative hearing was held on September 13, 14 and 20, 2000. Administrative Record, Volume VI, at 1. The hearing officer issued his decision on October 31, 2000. Id., Volume V, at 1635. He rejected the parents' claims of procedural violations, id. at 1640, and found that the IEP failed to contain sufficient information as to how the student was to be instructed in those areas referred to in the goals and objectives section of the IEP; was inconsistent with state and federal requirements in providing that the vast majority of the special education services described in the IEP were to be provided by S.R.'s WOU job coach, who was not a certified teacher of regular or special education; and was deficient in failing to include a behavior intervention plan. Id. at 1641-43. Finally, the hearing officer found that the proposed placement at WOU met the requirement that special education services be provided in the least restrictive environment in which the student can receive an appropriate education. Id. at 1643-44.

10. On November 20, 2000 the parents filed the complaint in Docket No. 00-367-P-H, seeking reversal of the administrative hearing officer's conclusion concerning appropriate placement and a "comprehensive evaluation" of S.R. "as required by 34 C.F.R. § 104.35." Complaint (Docket No. 1 in 00-367-P-H) at 6. On December 22, 2000 MSAD 35 filed an answer and counterclaim seeking a declaration that S.R. posed a substantial likelihood of injury to himself or others if he remained at Marshwood and a declaration that the deficiencies in the IEP noted by the administrative hearing officer did not violate state or federal law. Answer/Counterclaim (Docket No. 4 in 00-367-P-H) at 9.

11. On January 11, 2001 the parents moved to dismiss the counterclaim as untimely. Docket No. 8 (in 00-367-P-H). The two actions were consolidated on February 12, 2001. Docket No. 27. The administrative record was filed with the court on February 16, 2001. Letter dated February 12, 2001 from Pat Neumeyer, Maine Department of Education, to William S. Brownell, Clerk. The motion to dismiss was denied on April 2, 2001. Docket No. 40. The parents filed a notice of appeal from this decision on May 7, 2001. Docket No. 42. The court notified the parties that action in both of the consolidated cases would be stayed pending resolution of the appeal. Docket No. 45. On July 31, 2001 the First Circuit Court of Appeals entered an order holding appellate proceedings in abeyance pending final judgment in Docket No. 00-367-P-H. Docket No. 46.

12. Pursuant to motion and order, Docket Nos. 48 and 50, the parties filed briefs on the merits according to an agreed schedule.

III. Proposed Conclusions of Law

A. Applicable Legal Standards

1. The IDEA provides, in relevant part, that a state, like Maine, that receives federal financial assistance for its public schools, must ensure that:

[a] free appropriate public education is available to...