Ms. S. ex rel. B.S. v. Reg'l Sch. Unit 72

• Decision Date: 15 July 2016
• Docket Number: No. 15-1487,15-1487
• Citation: 829 F.3d 95
• Parties: Ms. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellant, v. Regional School Unit 72, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

829 F.3d 95

Ms. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellant

v.Regional School Unit 72, Defendant, Appellee.

No. 15-1487

United States Court of Appeals, First Circuit.

July 15, 2016

Richard L. O'Meara, with whom Stacey D. Neumann, Caroline J. Jova, and Murray, Plumb & Murray were on brief, for appellant.

Eric R. Herlan, with whom Hannah E. King and Drummond Woodsum& MacMahon were on brief, for appellee.

Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

LIPEZ

, Circuit Judge.

This case concerns two separate, but ultimately intertwining, narratives. The first is that of appellant, Ms. S., her son, B.S., and his right to a free appropriate public education (“FAPE”) under the federal Individuals with Disabilities Education Act (“IDEA”). The second concerns the implementation of a Maine regulation—referred to herein as the “filing limitation”—that determines how much time a parent, such as Ms. S., has to request a due process hearing alleging an IDEA violation.

In May 2013, Ms. S. filed a request for a due process hearing with the Maine Department of Education (“MDOE”) concerning alleged IDEA violations in all of B.S.'s ninth (2009–2010), tenth (2010-2011), eleventh (2011-2012), and twelfth (2012-2013) grade years. The hearing officer dismissed the claims that arose during B.S.'s ninth and tenth grades as time barred because the filing limitation allowed only claims brought within two years of when the parent knew or should have known of a violation. Ms. S. sought judicial review in the district court, arguing that the hearing officer should not have dismissed the ninth and tenth grade claims because the two-year filing limitation was not promulgated in compliance with the Maine Administrative Procedure Act (“Maine APA” or “MAPA”) and is therefore void and of no legal effect. The district court determined that the two-year filing limitation was valid, Ms. S. did not qualify for an exception to the limitation period, and B.S. received a FAPE in the eleventh and twelfth grades. Ms. S.'s timely appeal followed.

We conclude that the district court erred in its analysis of the validity of the two-year filing limitation, and, further, that the record before us is insufficient to determine whether the MDOE adequately complied with MAPA procedures when adopting the two-year filing limitation. Given that conclusion, we do not reach the question of whether an exception to the filing limitation applies here. However, we do find that, consistent with the district court's judgment, B.S. received a FAPE in the eleventh and twelfth grades. We therefore vacate and remand in part, and affirm in part.

I. Background

A. B.S.'s Education

B.S. received special education services on and off from kindergarten through high school to address developmental delays, particularly related to speech development. He was diagnosed with autism

in high school. In detailing this history, we recite the facts pertinent to Ms. S.'s arguments on appeal.

In 2009, B.S. enrolled in the ninth grade at Fryeburg Academy, a contract high school for students residing in Regional School Unit 72 (the “school district”). Before beginning school, an Individualized Education Program (“IEP”) team composed of school staff, Ms. S., and B.S. met and determined that B.S. did not qualify for an IEP, but the team provided B.S. with a 504 Plan¹ to address language deficits. In ninth grade, B.S. also participated in Fryeburg Academy's “Transition Program” and was provided accommodations such as an allowance for delayed responses through his 504 Plan. By tenth grade, however, B.S. had a normal schedule of college-preparatory courses and no longer participated in the Transition Program.

In tenth grade, B.S. began to engage in inappropriate use of the Internet and was cyber-bullied by his peers. His first trimester grades included four “F” grades and one “D-” grade. After again determining in November 2010 that B.S. did not need special education services, the IEP team met next in May 2011 and concluded that B.S. was eligible for IDEA services, including speech language therapy, classroom accommodations, and sessions at the school's Learning Center.

At the beginning of B.S.'s eleventh grade year, the IEP team held another meeting to review the results of B.S.'s summer assessments and diagnoses. Over the summer, B.S. was diagnosed with “Autistic Disorder

,” “Mixed Receptive and Expressive Language Disorder,” and “Depressive Disorder.” In response, the IEP team required additional reporting on B.S.'s speech and language sessions and suggested B.S.'s participation in a planned social group that never came to fruition, but otherwise did not change B.S.'s IEP. On a weekly basis, Carie Heath, a speech and language services provider, worked with B.S. on his speech and language skills, as well as his social skills. During this time, Heath consulted with school staff and Ms. S. concerning B.S., and B.S. told Heath that he “felt good” about his progress. B.S.'s special education teacher testified that during the same period, B.S. became more involved with student activities and was “starting to come out of [his] shell.”

However, in October 2011, B.S. began missing some of his classes, and, in November 2011, Ms. S. informed the school that she would be keeping B.S. home due to safety concerns resulting from bullying. Shortly thereafter, the IEP team met to address these concerns. In response to Ms. S.'s request that B.S. receive group-based social skills instruction, school staff informed her that the psychological services provider worked with students individually for scheduling reasons, but that B.S. was encouraged to engage in group activities and had been doing so through his involvement with the school's student union and sports teams. B.S.'s special education teacher also reported that B.S. was “making small advancements, but still needs prompting and coaxing.” Nevertheless, the IEP team agreed that B.S.'s IEP should be enhanced to include a one-on-one educational technician escort in and between all classes, to add a behavior plan, and to require daily meetings with his school advisor.

By December of his eleventh grade year, B.S. was evading his school escort and had reportedly stolen sneakers from one of the school's dormitories. As a result of the theft, the Fryeburg Academy Judicial Board expelled B.S. At a January 2012 IEP team meeting, the team determined that tutorial services were necessary pending B.S.'s return to a full-time program. On February 2, 2012, the team met again to identify possible alternative schools that B.S. might attend, including the REAL School for both disabled and nondisabled students who had difficulty in a traditional school setting. The following week, the REAL School offered B.S. admission to its program. The REAL School had a shortened-day program, prompting expressions of concern from Ms. S., but she nevertheless agreed to the placement.

In the months following B.S.'s mid-school-year placement at the REAL School, B.S. appeared both to have excelled and to have experienced setbacks. At a March IEP meeting, the team declined Ms. S.'s request for a longer school day but added social and transition goals to B.S.'s IEP. The REAL School also prepared a Positive Behavior Support Plan for B.S., and his June report card reflected grades above 90 in all of his courses, including a 98 in math and a 95 in English and social studies. His SAT scores, however, were rated in the tenth, seventh, and third percentiles nationally for reading, writing, and math, respectively, and B.S. engaged in some questionable behavior involving the taking of money. In spite of these issues, Ms. S. lauded the program and its administrators in email exchanges, and she offered such praises as: “thanks for being so awesome,” and “you guys are good.” During this time, Heath continued to provide weekly speech and language services to B.S.

In the summer of 2012, the REAL School provided B.S. with nine hours of services with a licensed clinical social worker and three days of adventure programming. That same summer, licensed psychologist Laura Slap–Shelton concluded that B.S. had Autistic Disorder

and “is a candidate for therapeutic residential placement for adolescents with Autistic Disorder and other developmental disorders.”

At the end of August 2012, B.S.'s IEP team met again to review Dr. Slap–Shelton's evaluation. A written notice from the meeting indicates that B.S. “liked attending the REAL School” and “would not like to see anything change.” Ms. S. indicated that the lengthy commute to and from the REAL School limited B.S.'s time to socialize and that she would like to see B.S. placed in a residential setting. The team met again in early September 2012 and could not reach a consensus concerning Dr. Slap–Shelton's evaluation and diagnosis of autism

. The team raised concerns that Dr. Slap–Shelton's evaluation “did not conform with either local or state standards for assessments.” The team, however, agreed that B.S. should remain for a fifth year of high school for the 2013–2014 academic year. After the September 2012 meeting, a district-hired psychologist conducted additional testing of B.S.'s skills and potential disorders. The psychologist later testified that his role was not to make a diagnosis concerning autism, but that he “would be skeptical” of such a diagnosis. He also testified that a “residential program that requires 24–hours supervision doesn't seem to fit” B.S.'s needs, nor did an all-boys program.

In his senior year at the REAL School, B.S. participated in service activities, and in an email to Ms. S., the director of the REAL School described B.S.'s participation as “stunningly active” and reported that “[B.S.] contributed so much leadership and kindness to our group.” B.S.'s first quarter report card reflected a grade of 98 in English, math, and science, and a grade of 95 in social studies. However, Ms. S. continued to object...