Ms. S. v. Regional School Unit 72

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Sandra L. Lynch, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [15-1487]

Case: 15-1487

Document: 00117029754

Page: 1

Date Filed: 07/15/2016

Entry ID: 6017821

United States Court of Appeals
For the First Circuit
No. 15-1487
MS. S., individually and
as parent and legal guardian of B.S., a minor,
Plaintiff, Appellant,
v.
REGIONAL SCHOOL UNIT 72,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]

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

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.

July 15, 2016

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LIPEZ, Circuit Judge.

Date Filed: 07/15/2016

This case concerns two separate,

but ultimately intertwining, narratives.
appellant,
appropriate

Ms.

S.,

public

her

son,

B.S.,

education

Entry ID: 6017821

and

("FAPE")

The first is that of
his

right

under

to

the

Individuals with Disabilities Education Act ("IDEA").

a

free

federal

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

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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.
autism in high school.

He was diagnosed with

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").
an

Individualized

Education

Program

Before beginning school,

("IEP")

team

composed

of

school staff, Ms. S., and B.S. met and determined that B.S. did

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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."
required

additional

reporting

on

1

In response, the IEP team

B.S.'s

speech

and

language

Even if a school district concludes that a student is not
eligible for special education services under the IDEA, the
district may offer some accommodations for a student under Section
504 of the Rehabilitation Act of 1973. See 29 U.S.C. § 794.

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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

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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

admission to its program.

week,

the

REAL

School

offered

B.S.

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

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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

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or state standards for assessments."

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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

24-hours

that

a

"residential

program

that

requires

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 to

the school's shortened day and B.S.'s lengthy commute.
16,

2012,

Ms.

S.

informed

the

school

district

On October

that

she

was

"rejecting as inappropriate the IEP and placement offered" to B.S.,
and that she was removing B.S. from the REAL School and placing
him at the Eagleton School in Massachusetts. Ms. S. also requested
reimbursement for the costs of placing B.S. at the Eagleton School,
which is a full-time, all-male residential program.

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At a November 2012 IEP team meeting, the team noted that
B.S. "had made excellent progress with developing social skills
and progressing academically" at the REAL School and that they
"did

not

agree

with

the

need

for

a

residential

placement."

Nevertheless, B.S. began attending Eagleton that month.

In March

2013, the IEP team met again to discuss B.S.'s programming at
Eagleton, and the school district's director of special services
determined that B.S. should still be placed at the REAL School.
By July 2013, the school's education director reported that B.S.
had "blossomed socially" at Eagleton and that he would be ready to
transition back to the REAL School for the fall of his fifth year
of high school, with the proper social and language supports.
B.S. completed the Eagleton program in August 2013 and
returned to the REAL School for the 2013–2014 year.

From November

2012 through August 2013, Ms. S. spent $115,782.50 on B.S.'s
placement at the Eagleton School.2
B.

The Filing Limitation
In the fall of 2009, as B.S. was beginning ninth grade

at Fryeburg Academy, the MDOE was beginning the process to revise
certain

rules

within

Regulation ("MUSER").

the

Maine

Unified

Special

Education

The Maine APA governs the process to amend

2

In her brief, Ms. S. states that costs totaled $119,147.00.
However, the magistrate judge identified Ms. S.'s costs as
$115,782.30.
Ms. S. does not address this discrepancy in her
briefing.

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MUSER, and MUSER, a state regulation, controls the process for
requesting a due process hearing under the IDEA.

Although the

IDEA and its corresponding federal regulations provide default
provisions for this due process hearing procedure, the IDEA permits
states

to

vary

some

of

these

provisions.

See

20

U.S.C.

§ 1415(f)(3)(C).
Two specific MUSER provisions are relevant here.
first

is

the

filing

limitation,

which,

as

discussed

The

above,

specifies the time a parent or school district has to file a
request for a due process hearing after the date the parent or
district "knew or should have known about the alleged action that
forms the basis of the due process hearing request."
05-071, Ch. 101 ("MUSER") § XVI.13.E.
separate

provision

--

referred

to

Me. Code R.

MUSER also contains a

herein

as

the

"look-back

term" -- that limits how far back in time a claim may reach once
a parent knows or should have known of an asserted violation.

Id.

§ XVI.5.A(2).
Prior to the MDOE's efforts to amend MUSER in 2009-2010,
the filing limitation and the look-back term each stood at four
years.3

Thus, in certain circumstances, a parent might have had

eight years from the date of an alleged violation to file an IDEA
due process hearing request: the violation could have taken place

3

The federal default is two years for each.
§§ 300.507(a)(2), 300.511(e).

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34 C.F.R.

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up to four years before the parent knew or should have known about
the violation (the look-back term), and then, from the point at
which the parent knew or should have known about the violation,
the parent had another four years to decide if he or she would
like to request a due process hearing (the filing limitation).
In November 2009, the MDOE issued a "Notice of Agency
Rule-making Proposal," which identified a variety of proposed
changes to MUSER, including that "the statute of limitations for
due process hearings will be changed to the federal standard of
two years."

To accompany the public notice statement, the MDOE

published at least two versions4 of MUSER that indicated the MDOE's
proposed changes by striking through old language and underlining
new proposed language.

Both versions explicitly changed the look-

4

One version of the proposed regulation is identified as
"Proposed For Provisional Adoption November 2009" and the other
version is identified as "Proposed Emergency Refinements Fall
2009." The former version was not provided in the record but is
publicly available. We take judicial notice of proposed agency
rules and the public record materials relating to the rulemaking
process. See Redfern v. Napolitano, 727 F.3d 77, 83 n.4 (1st Cir.
2013) (taking judicial notice of the Transportation Security
Administration's notice of proposed rulemaking); see also Ams. for
Prosperity Found. v. Harris, 809 F.3d 536, 538 n.1 (9th Cir. 2015)
(per curiam) (taking judicial notice of a proposed state
regulation).
Although the pagination differs between the two versions, the
content of both versions is identical with regard to the look-back
term and the filing limitation. Compare "Proposed for Provisional
Adoption," Maine Unified Special Education Regulation Birth to Age
Twenty, at 161, 171 (proposed Nov. 2009), with "Proposed Emergency
Refinements," Maine Unified Special Education Regulation Birth to
Age Twenty, at 160, 170 (proposed Fall 2009).
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back term from four years to two years.

Entry ID: 6017821

However, neither version

indicated any change to the filing limitation, and, instead, left
the provision untouched at four years.
In accordance with MAPA procedures, the MDOE scheduled
a public hearing in December 2009 to discuss the proposed changes.
In January 2010, after the notice and comment period, the MDOE
filed the now "provisionally adopted rules" -- which contained a
proposed two-year look-back term and an unchanged four-year filing
limitation -- with the Maine Secretary of State and submitted the
rules to the Maine Legislature for its required review.
While this standard rulemaking was taking place, the
MDOE had also taken advantage of an expedited MAPA procedure
allowing a rule to take effect on a temporary, "emergency" basis.
The emergency rule contained several of the same changes to MUSER,
including a change to the "statute of limitations for due process
hearings."

Consistent with the earlier filings, the emergency

rule included a two-year look-back term and an unchanged filing
limitation of four years.

This emergency rule was adopted by the

agency in January 2010 and then submitted to the Maine Legislature
for permanent adoption, along with the provisionally adopted rule,
later that month.
Education
considered

and
the

The Legislature's Joint Standing Committee on

Cultural
emergency

Affairs
and

("Joint

Standing

provisionally

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Committee")

adopted

rules

in

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tandem, conducting a public hearing and multiple work sessions in
February 2010.
The Maine Legislature then approved the emergency and
provisionally adopted rules with some amendments but none that
altered the filing limitation from four years to two years.5
Following the MAPA-mandated legislative review, the MDOE adopted
a final version of MUSER.

Here, for the first time, MUSER listed

the filing limitation as two years from the date a parent knew or
should have known about an alleged violation.

The look-back term

also was listed as two years, as it had been in the proposed,
emergency, and provisionally adopted versions of the rule.
C. Procedural History
In May 2013, Ms. S. filed a request for a due process
hearing with the MDOE concerning alleged violations in each of
B.S.'s high school years. The hearing officer dismissed the claims
that arose during the ninth and tenth grades as barred by the twoyear filing limitation.

The hearing officer then found that the

school district did not provide B.S. with a FAPE for the ten-day
period

following

his

expulsion

from

Fryeburg

Academy

in

his

eleventh grade year, but B.S. did receive a FAPE during the

5

The legislative resolve adopting the MDOE's MUSER proposal
included a provision that appears to amend the statute of
limitations for a state complaint process, which is outlined in
MUSER section XVI.4. This complaint process is distinct from the
due process hearing request procedure at issue here. Compare MUSER
§ XVI.4, with id. § XVI.5, .13.

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remainder of his eleventh grade year and throughout his twelfth
grade year.
Ms. S. sought judicial review in the district court,6
arguing that the two-year filing limitation is void because it was
not passed in compliance with the Maine APA, and hence B.S.'s ninth
and tenth grade claims should be restored.

In connection with her

claims, Ms. S. sought reimbursement for costs associated with
B.S.'s

private

placement

at

the

Eagleton

compensatory educational services for BS."

School

"and/or

The school district

did not appeal the hearing officer's minor ruling in Ms. S.'s favor
regarding

the

ten-day

Fryeburg Academy.

period

following

B.S.'s

expulsion

from

The magistrate judge recommended that the

district court hold the two-year filing limitation valid because
the Maine Legislature reviewed and approved the two-year filing
limitation when it approved subsequent amendments to other parts
of MUSER in post-2010 rulemakings, including in 2011 and 2012.
The district court adopted the recommendation on this
point, and it added that evidence of the Legislature's intent in
early 2010 supports the conclusion that the Legislature approved
a two-year filing limitation at the same time that it approved the

6

Under the IDEA, "[a]ny party aggrieved by the findings and
decision made under [the 'Impartial due process hearing'
subsection of the IDEA] . . . shall have the right to bring a civil
action with respect to the complaint presented . . . in a district
court of the United States." 20 U.S.C. § 1415(i)(2)(A).

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proposed two-year look-back term.

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The district court also adopted

the recommendation that Ms. S. did not qualify for an exception to
the

limitation

period

and

that

B.S.

received

a

FAPE

in

the

remainder of his eleventh grade year and throughout his twelfth
grade year.
II. Standard of Review
We review de novo the validity of the two-year filing
limitation under MAPA.

See Town of Johnston v. Fed. Hous. Fin.

Agency, 765 F.3d 80, 83 (1st Cir. 2014).

With regard to Ms. S.'s

eleventh and twelfth grade IDEA claims, we "review the district
court's answers to questions of law de novo and its findings of
fact for clear error."

D.B. ex rel. Elizabeth B. v. Esposito, 675

F.3d 26, 36 (1st Cir. 2012) (quoting C.G. ex rel. A.S. v. Five
Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008)).

When

faced with mixed questions of law and fact, such as whether an IEP
is adequate or a student received a FAPE, "our degree of deference
depends on whether a particular determination is dominated by law
or fact."

Id. at 36.
III. The Maine Administrative Procedure Act
Ms. S. argues that the district court erred in holding

that the MDOE promulgated the two-year filing limitation rule in
accordance

with

MAPA.

She

asserts

that

the

MDOE

"made

an

unauthorized unilateral change to the Filing Limitation Term," and
that the MDOE's failure to comply with MAPA should render the two-

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year filing limitation void. As a result, Ms. S. argues, we should
conclude that the ninth and tenth grade claims were timely brought
within the four-year filing period.
MAPA ordinarily requires an agency to promulgate certain
non-technical, major substantive rules (such as the rules changing
the filing limitation) via a two-step process.

The first step

requires the agency to provide public notice of the proposed rule
and an opportunity for comment.
§ 8053.

See Me. Rev. Stat. Ann. tit. 5,

The second step, which is the primary focus of our

analysis, requires legislative review of the proposed rule.
id. § 8072.

See

If an agency violates MAPA's rulemaking procedure,

MAPA's "Judicial Review" provision prescribes whether the rule
nevertheless survives depending on the nature and impact of the
violation.

See id. § 8058.
The district court did not address the notice step of

the rulemaking process.

The court looked to the Legislature's

intent in 2010 as well as the Legislature's approval of rulemakings
in 2011 and 2012 to conclude that the two-year filing limitation
was valid.
rulemaking's

As we explain below, the court's assessment of the
compliance

with

MAPA's

legislative

review

requirements was flawed in three respects: (1) it erroneously
analyzed certain materials regarding the Legislature's intent to
approve a two-year filing limitation; (2) it erroneously concluded
that subsequent years' rulemakings cured any prior deficiencies;

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and (3) it failed to apply a MAPA-provided review standard to
evaluate the rulemaking missteps.

On the record before us,

however, we are unable to determine whether these errors undermine
the court's conclusion that the two-year filing limitation is
valid.

We therefore remand the case to the district court to be

decided in accordance with the guidance provided below.
Regrettably,

we

cannot

explain

our

without describing the complexities of MAPA.

remand

decision

We thus begin by

examining MAPA's legal framework.
A.

MAPA Rulemaking7
Under MAPA, a state agency seeking to adopt a "major

substantive rule" may initiate the rulemaking process in two ways:8
by following the standard procedures prescribed for such rules or
by seeking temporary adoption of an "emergency rule."
Stat. Ann. tit. 5, §§ 8072, 8073.

Me. Rev.

The two paths may be pursued

simultaneously, which is what occurred here.

See id.

Hence,

because the MDOE proposed the filing limitation as both a major

7

To help the reader navigate the relationship among the
various provisions of MAPA, we have provided an appendix that
identifies the relevant sections of the Act and describes briefly
the subject matter of these sections.
8

Major substantive rules include those that, "in the judgment
of the Legislature, . . . [r]equire the exercise of significant
agency discretion or interpretation in drafting" or "are
reasonably expected to result in . . . the loss or significant
reduction of government benefits or services."
Me. Rev. Stat.
Ann. tit. 5, § 8071.2.B. It is undisputed that the rulemaking at
issue here involved a major substantive rule.

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substantive

rule

and

an

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emergency

rule,

we

review

Entry ID: 6017821

the

MAPA

requirements for each.
Although major substantive rules are subject to greater
scrutiny than routine technical rules, the standard rulemaking
process

begins

with

the

same

notice

applicable to such routine rules.

and

comment

procedures

See id. §§ 8072, 8052, 8053.

In addition, "every major substantive rule is also subject to
legislative review," as described in MAPA section 8072.
§ 8072 (preamble); see also id. § 8071.3.B.

Id.

A major substantive

"rule has legal effect only after review by the Legislature
followed by final adoption by the agency."9

Id. § 8072.1.

A major substantive rule also may be proposed as an
"emergency

rule,"

i.e.,

one

that

"is

necessary

to

avoid

an

immediate threat to public health, safety or general welfare."
Id. §§ 8054.1, 8073.
rule

meets

this

If an agency finds that implementation of a

standard,

it

may

9

"modify"

the

rulemaking

Under the version of MAPA in place in 2010, a loophole in
the statutory text may have allowed a rule that was submitted to
the Legislature to take effect without legislative action, even if
the rule was submitted outside of the legislative rule acceptance
period. See Final Report of the State and Local Gov't Comm. Study
of the Rule-making Process under the Maine Administrative
Procedure Act, 124th Leg., 2d Sess., at i (Me. 2010); Me. Rev.
Stat. Ann. tit. 5, § 8072.7 (2005).
In 2011, the Legislature
amended MAPA to clarify that, where an agency submits a
provisionally adopted rule "during the legislative rule acceptance
period and the Legislature fails to act," the agency may finally
adopt the rule.
Me. Rev. Stat. Ann. tit. 5, § 8072.11 (2011)
(emphasis added).

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requirements to accelerate "adoption of rules designed to mitigate
or alleviate the threat found."

Id. § 8054.1.

Emergency rules,

however, are not permanent. In certain circumstances, an emergency
major substantive rule may be effective "for up to 12 months or
until the Legislature has completed review."10

Id. § 8073.

Thus,

at the very least,11 the Legislature must review any changes to a
major substantive rule adopted through the emergency process to
make such a rule permanent.
B.

MAPA Judicial Review
MAPA

section

8058

sets

forth

the

judicial

standards for alleged agency rulemaking violations.12

review

Me. Rev.

10

The emergency major substantive rule at issue here was, in
fact, slated to be "in effect for one year, except that the
Legislature may enact legislation to authorize, amend or
disapprove of the final adoption of these changes." An emergency
major substantive rule may be effective for up to twelve months if
it is "adopted . . . after the deadline for submission to the
Legislature for review."
Me. Rev. Stat. Ann. tit. 5, § 8073.
Otherwise, such a rule is effective for only 90 days. See id.
§§ 8054.3, 8073.
11

MAPA does not expressly state that compliance with standard
notice procedures also is necessary where, as here, a major
substantive rule change has been implemented on an emergency basis
for a twelve-month period. See Me. Rev. Stat. Ann. tit. 5, § 8073.
As we note infra, we leave it to the district court to address
this issue in the first instance.
12

Section 8058.1 affords judicial review to individuals
seeking "declaratory judgment in the Superior Court." Me. Rev.
Stat. Ann. tit. 5, § 8058.1.
Subsection 2 states that "[t]he
failure to seek judicial review of an agency rule in the manner
provided by subsection 1 shall not preclude judicial review thereof
in any civil or criminal proceeding." Id. § 8058.2. Hence, the
Maine Supreme Judicial Court, sitting as the Law Court ("Law
Court"), rejected any reading of subsection 1 that limits judicial
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Stat. Ann. tit. 5, § 8058.

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Curiously, neither party's briefing,

either to us or the district court, refers to this provision when
evaluating whether the Maine Legislature reviewed the reduced
filing

limitation

in

accordance

with

MAPA

in

2010.13

Not

surprisingly, given this omission, the district court did not refer
to it in its order.

In light of these omissions, we arguably could

avoid the question of the appropriate standard for judicial review
by invoking the waiver doctrine.
895 F.2d 1, 17 (1st Cir. 1990).

See United States v. Zannino,
However, the parties have asked

us to decide whether the two-year filing limitation is valid for
the purpose of resolving Ms. S.'s IDEA claims.

In our view, it

would be imprudent to ignore a factor critical to a challenge to
a rule's adequacy and to ignore the statutory text of MAPA's
"Judicial Review" provision.

See U.S. Nat'l Bank of Or. v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 446 ("[W]hen an issue or
claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper

review to rule challenges brought in declaratory and enforcement
actions.
See Conservation Law Found., Inc. v. Dep't of Envtl.
Prot., 823 A.2d 551, 558 (Me. 2003).
13

The parties briefly touch on, but do not develop, the issue
in their discussion of subsequent rulemakings in 2010–2011, 2011–
2012, and 2012–2013. They do not discuss the different standards
with respect to the 2009–2010 rulemaking violations primarily at
issue here.

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construction of governing law." (quoting Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991))).

Moreover, our discussion

of the proper scope of the court's review under MAPA does not
result in a merits decision by us as to the validity of the filing
limitation.

Rather, we raise this issue to properly frame the

district court's review of the case on remand.
The applicable MAPA review standard depends upon the
type of MAPA violation.

Hence, we must classify the failure to

comply with MAPA's legislative review procedure as a particular
type of violation in order to determine the appropriate review
standard for such a violation.

Section 8058 sets the scope of

judicial review for three types of rulemaking violations: (1) if
the "rule exceeds the rule-making authority of the agency," (2) if
the rule "is void under section 8057" of MAPA (discussed below),
and (3) "any other procedural error."

Me. Rev. Sat. Ann. tit. 5,

§ 8058.1.
If a court finds either of the first two types of
violations, the court must hold the rule invalid.

Id.

In a case

dealing with the third type of MAPA violation -- "any other
procedural error" -- the court may find the rule invalid only if
the procedural error is substantial and "of such central relevance
to the rule that there is a substantial likelihood that the rule
would

have

been

significantly

changed

if

the

error

had

not

occurred." Id. The Maine Law Court has described the "substantial

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likelihood" standard as "a harmless error standard similar to that
employed in ordinary civil litigation."

Fulkerson v. Comm'r, Me.

Dep't of Human Servs., 628 A.2d 661, 663 (Me. 1993).
The Law Court also concluded that the two different
review standards -- automatic invalidation and harmless error -reflect the Legislature's "inten[t] to narrow the circumstances in
which procedural error would automatically invalidate a rule."
Id. at 663–64.

The court found that the "circumstances in which

invalidation [of a rule] is automatic principally involve a denial
of public participation."

Id. at 664.

Here, the parties do not dispute the general rulemaking
authority of the MDOE as to MUSER (which would implicate the first
type of rulemaking violation), and we thus focus only on the second
and third types of rulemaking violation.

The second type consists

of violations that would make a rule "void under section 8057" of
MAPA.

Me. Rev. Stat. Ann. tit. 5, § 8058.1.

Section 8057 requires

compliance with four sections of MAPA: two govern the general
rulemaking and public notice process (sections 8052 and 8053), one
governs emergency rulemaking (section 8054), and one governs the
filing and publication of an adopted rule (section 8056).
§ 8057.1–.2.

Id.

Section 8057 states that failure to comply with

certain parts of these sections renders a rule "void and of no
legal

effect,

except

that

insubstantial

deviations

from

the

requirements of section 8053," i.e., the section governing notice,

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"do not invalidate the rule subsequently adopted."
see also id. § 8057.2.

Entry ID: 6017821

Id. § 8057.1;

The judicial review standard in section

8058 then reinforces this scheme by stating that, if a "court finds
that a rule . . . is void under section 8057, . . . it shall
declare the rule invalid." Id. § 8058.1. In sum, a court reviewing
certain alleged violations of sections 8052, 8053, 8054, or 8056
must consider whether such a violation occurred, and, absent the
insubstantial deviation exception for notice, if the court finds
a violation, it must declare the rule invalid.
Meanwhile, the third type of violation encompasses all
"other procedural error[s]."

Id. § 8058.1.

It follows that such

errors are those that do not constitute an agency transgression of
its rulemaking authority (i.e., the first type of violation) and
those that are not addressed in MAPA's compliance section, section
8057 (i.e., the second type of violation).

See id.

The legislative review stage of the rulemaking process
is governed by sections 8071 and 8072 of MAPA, neither of which is
discussed in MAPA's compliance section.

See id. § 8057.

Section

8057 also does not address failures to comply with certain parts
of the MAPA section governing emergency major substantive rules.
See id. §§ 8057, 8073.
fall

into

the

third,

Thus, errors at these stages appear to
catch-all

"any

other

procedural

error"

category and warrant harmless error review under MAPA section 8058.
Id. § 8058.1.

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We must, however, address one other consideration in a
court's review of a rulemaking's compliance with the legislative
review process. Section 8072 expressly states that a provisionally
adopted major substantive rule "has legal effect only after review
by the Legislature followed by final adoption by the agency."
§ 8072.1.

Id.

Standing alone, this language suggests that the utter

absence of legislative review for a major substantive rule may
preclude the validity of a finally adopted rule.

Although both

past and present versions of section 8072 allow for a rule to take
legal effect without legislative action in certain circumstances,14
see supra note 9, it is fair to say that the Legislature at least
must have had the opportunity to review the substance of a finally
adopted rule in the section 8072 process. Absent such opportunity,
it may be that a final major substantive rule cannot survive
judicial scrutiny under section 8058.

How these nuances play out

in this case is best left to the district court to address in the
first instance.
C.

Adoption of the Two-Year Filing Limitation
The challenge in this case to the validity of the two-

year filing limitation is not a surprise.
actions

surrounding

the

overall

fostered confusion and concern.

MUSER

The MDOE's rulemaking
changes

in

2009-2010

In fact, this rulemaking prompted

14

The school district nowhere contends that the two-year
filing limitation is valid as a result of this loophole.

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the passage of a bill in the Maine Legislature to commission a
report on state agency rulemaking efforts under MAPA.

See Final

Report of the State and Local Gov't Comm. Study of the Rule-making
Process under the Maine Administrative Procedure Act, 124th Leg.,
2d Sess. (Me. 2010).

The resulting public report discusses

government confusion concerning the process for permanent adoption
of an emergency rule and, more significantly, it observes that
many saw the MDOE changes to MUSER as "a continuation of a process
in which the department was frustrating the will of the Legislature
by adopting policies that were not consistent with direction given
by the Legislature."

Id. at App. B, 4 & n.2.

With respect to the specific MUSER provisions at issue
here,

the

phrase

"statute

of

limitations"

is

used

without

definition by the MDOE in its public notice statement, by the MDOE
Commissioner in her testimony to the Maine Legislature, by many
additional witnesses and advocates, and by the Legislature itself.
Both

the

filing

limitation

and

look-back

term

involve

time

restrictions, and both periods were originally four years while
the parallel federal periods are both two years.

Hence, the

"statute of limitations" label could be used to describe the filing
limitation,

the

look-back

term,

or

both.

This

imprecision

complicated the rulemaking process.
As

described

above,

the

standard

process

for

implementing a major substantive rule involves two steps, notice-

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and-comment and legislative review.

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Entry ID: 6017821

Ms. S. asserts error in both

steps of the 2009-2010 rulemaking, but does not account for the
rulemaking's parallel, emergency track.

We briefly address notice

before moving on to the three errors we detect in the district
court's discussion of the legislative review step.
errors

concern

the

court's

treatment

of

These three

legislative

intent,

subsequent rulemakings, and MAPA's judicial review standards.
1.

Notice

Ms. S. asserts on appeal that the 2010 final adopted
filing limitation is invalid because the MDOE did not provide the
public notice or opportunity for comment that is required in the
rulemaking process.15 Although Ms. S. raised the adequacy of notice
in the district court,16 that issue received little attention from
either

the

district

court

or

the

parties.

For

example,

no

consideration was given to whether the MDOE must provide public

15

In her brief, Ms. S. argues that the MDOE implemented the
two-year filing limitation in 2010 "[w]ithout [p]ublic [n]otice
and [c]omment," that the MDOE proposed shortening the "Look-Back
Term—but not the Filing Limitation Term," and that rule changes
require "public notice and comment" under section 8052.
16

For example, in Ms. S.'s memorandum objecting to the school
district's motion to dismiss, Ms. S. argued that the "alteration
of the Final Adoption version of [MUSER] . . . occurred in the
absence of any public notice of this change, [or] any public
comment relating to this change." In a subsequent brief to the
district court, the school district acknowledged this argument,
noting that "[a]s Plaintiff has argued from the beginning, she
continues to assert that the Maine DOE itself adopted the two-year
limitation period without proper notice, comment or approval by
the Maine Legislature."

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notice when making permanent an emergency major substantive rule
and, if so, whether the MDOE provided adequate notice here.
think

these

questions

are

more

appropriately

district court in the first instance.

handled

by

We
the

See Town of Barnstable v.

O'Connor, 786 F.3d 130, 141–43 (1st Cir. 2015) (declining to decide
and remanding a question of law advanced by a party but not decided
in the district court); see also Singleton v. Wulff, 428 U.S. 106,
121 (1976) ("The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts
of individual cases.").

Depending on the court's resolution of

other issues, it may need to consider these notice questions on
remand.
2.

Legislative Intent

As

described

above,

the

rule

proposed

in

2009

and

approved by the Legislature in 2010 did not include language
reducing the filing limitation.

Nevertheless, the district court

concluded that the requisite legislative review occurred, in part,
because the record supported a finding that the Legislature in
2010 intended to approve a two-year filing limitation.
Ms. S. argues that courts may never consider lawmakers'
intent when evaluating whether a rulemaking complied with MAPA's
procedural requirements.

We reject the assertion that legislative

intent is entirely irrelevant to MAPA compliance.

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we can envision a court looking beyond the text of the regulatory
documents when conducting the harmless error inquiry prescribed by
MAPA section 8058.
Of

See Me. Rev. Stat. Ann. tit. 5, § 8058.1.

course,

in

some

circumstances,

consideration of legislative intent is improper.

a

court's

Ordinarily, the

Law Court does not look beyond language approved by the Legislature
to determine the Legislature's intent where, as here, the language
is unambiguous. See State v. Hood, 482 A.2d 1268, 1270 (Me. 1984).
The rule approved by the Legislature contained express language
specifying a filing limitation of "four years."

In addition, the

legislative resolve approving the rule made no changes to that
text.17
Nonetheless, the district court found that reference to
legislative intent was necessary to avoid "absurd, inconsistent,
unreasonable or illogical" results.
182 (Me. 1990).

State v. Niles, 585 A.2d 181,

The court concluded that the combination of a

two-year look-back term and a four-year filing limitation created
an illogical result because the "scheme would give parents more
time to take an action within their control . . . yet restrict
their rights with respect to a factor farther outside of their
control."

17

Given the clarity of the text here, we need not confront
Ms. S.'s suggestion that it is inappropriate to look to legislative
intent even where the text of an agency rule is ambiguous.

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We

disagree

Page: 29

that

logic

Date Filed: 07/15/2016

requires

either

Entry ID: 6017821

identical

timelines for both the look-back term and the filing limitation or
a longer timeline for the look-back term.

While a longer filing

limitation would not mirror the federal regulatory scheme, it could
reflect a plan to give parents more time for at least one stage of
the process.

Indeed, it does not strike us as illogical to give

parents more time to consult with counsel, consider their options,
and decide how to proceed once they are aware that a violation
took place.

The court therefore erred in finding an illogical

outcome that required the court to examine legislative intent.
In any event, the evidence that the court relied upon as
"unequivocal expressions" of the Legislature's intent does not
provide conclusive support for the court's finding.
that

the

Legislature

limitation,

the

intended

district

court

to

approve

pointed

to

a

In concluding

two-year

witness

filing

testimony

submitted to the Joint Standing Committee, which was reviewing the
changes to MUSER.

The limited materials presented to the district

court show that the MDOE Commissioner and multiple other witnesses
submitted testimony that included vague reference to a change to
the "statute of limitations."

However, much of the written

testimony

also

in

these

materials

included

specific

page

references to the text of the proposed rule, linking the witness's
position with the exact MUSER provision at issue.

When discussing

changes to the "statute of limitations," the testimony of the MDOE

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Commissioner and multiple other witnesses before the Committee
include page references that correspond solely to the look-back
term -- and not the filing limitation -- in the November 2009
"Proposed for Provisional Adoption" version of the rule.
"Proposed

for

Provisional

Adoption,"

Maine

Unified

See

Special

Education Regulation Birth to Age Twenty, at 161, 223 (proposed
Nov. 2009).

In light of these specific page references, we do not

interpret this testimony as a clear indication that the Legislature
reviewed the two-year filing limitation.18
For additional support for its conclusion, the district
court

looked

to

the

published

report

of

the

Joint

Standing

Committee's vote on the MDOE's proposed changes to MUSER.

Based

on this report, the court found that, "by a vote of seven to five,
[the Committee decided that] '[t]he statute of limitations for due
process hearings is changed to the federal standard of two years'"
(second alteration in original).

However, a closer examination of

the report reveals that the Joint Standing Committee voted that a
rule change to reduce "[t]he statute of limitations for due process
hearings" to two years ought not to pass, or "ONTP," by a vote of

18

Although some of the testimony uses such language as "filing
a due process hearing request," such language may indicate that
the only provision under review was the look-back term. We observe
that the look-back term appears in MUSER under the heading "Filing
a Due Process Hearing Request," MUSER § XVI.5, while the filing
limitation falls under the separate "Impartial Due Process
Hearing" section of the rule, MUSER § XVI.13.

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seven to five -- as opposed to the district court's assertion that
the Committee approved the change by such a vote.19

Although

subsequent committee vote tallies, of which we take judicial
notice, see Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226–
27 (1959), suggest that the Joint Standing Committee may have
reconsidered the measure, the precise subject of those subsequent
votes remains unclear.

See Joint Standing Comm. on Educ. and

Cultural Affairs, 124th Leg., Committee Voting Tally Sheets, L.D.
1741-4g (Me. Feb. 25, 2010).

Accordingly, to the extent the

district court refers to these rulemaking materials on remand, it
will need to reevaluate their content.
3.

Subsequent Rulemakings

The district court also offered a ratification rationale
for finding the rule valid notwithstanding the legislative review
issues of the original 2009-2010 rulemaking.

The court, agreeing

with the magistrate judge, concluded that the Legislature effected
a post hoc ratification of the two-year period when it reviewed

19

Understandably, the district court may have been led astray
by the phrasing in the report, which noted: "The statute of
limitations for due process hearings is changed to the federal
standard of two years" (emphasis added). However, the report's
use of this affirmative "is changed" language may be attributable
to the fact that the rule had already taken effect on a temporary
emergency basis, as discussed above, when the Joint Standing
Committee was voting on its permanent implementation.

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changes

to

other

parts

Page: 32

of

MUSER

Date Filed: 07/15/2016

in

subsequent

Entry ID: 6017821

rulemaking

proceedings in 2011 and 2012.
However, consistent with its review of the original
rulemaking, the district court did not consider the issue of notice
when it examined the subsequent rulemakings.

It again reviewed

only whether the Legislature had approved the proposed rules. Yet,
as both parties recognize, the subsequent proceedings were subject
to the MAPA requirement of notice and an opportunity for public
comment.

See Me. Rev. Stat. Ann. tit. 5, §§ 8052, 8053.

The

record provides no indication that the MDOE gave notice to the
public of any change to the length of the filing limitation period
in these subsequent, standard rulemakings.
The school district argues that the failure to alert the
public

to

this

"insubstantial

change

in

deviation[s]"

the

subsequent

from

MAPA's

rulemakings
notice

is

an

requirements

because the text of the proposed rules in those later years
included the two-year filing limitation.

See id. § 8057.1.

However, if merely including language in the body of a rule without
identifying it as a change were sufficient to provide notice,
MAPA's notice requirement would have no meaning.

An agency could

simply bury new language in a previously existing rule, putting an
unreasonable burden on the public to unearth the language and
identify it as a change.

We reject this approach as inconsistent

with the Law Court's view of the importance of notice and "public

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participation" in the rulemaking process.
at 664.

Entry ID: 6017821

See Fulkerson, 628 A.2d

Therefore, given the lack of notice in the subsequent

rulemakings, the district court erred in finding that these later
proceedings

cured

the

defects

in

the

original

2009-2010

rulemaking. See Me. Rev. Stat. Ann. tit. 5, §§ 8052, 8053, 8057.1,
8058.1.
4. Judicial Review
As discussed above, the review that a court applies to
a particular type of MAPA violation may dictate whether, in spite
of the violation, the rule has legal effect.

The district court's

decision did not reflect consideration of either the different
judicial review standards set forth in section 8058 or the fact
that section 8072 gives legal effect to a rule only if, at a
minimum, the Legislature had the opportunity to review it.
Me. Rev. Stat. Ann. tit. 5, §§ 8058.1, 8072.1.

See

Therefore, the

district court erred when it did not apply a MAPA-provided review
standard.
D. MAPA Summary and Guidance on Remand
In sum, we conclude that the district court did not
properly evaluate the validity of the two-year filing limitation
under MAPA's prescribed rulemaking procedures.

The district court

did not address the notice issue raised by Ms. S. as to the original
2009–2010 rulemaking.
evaluating

the

In addition, it made three errors when

2009-2010

rulemaking's

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compliance

with

MAPA's

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legislative
certain

review

materials

concluded

that

Page: 34

requirements:
regarding

subsequent

the

Date Filed: 07/15/2016

(1)

it

erroneously

Legislature's

rulemakings

Entry ID: 6017821

cured

analyzed

intent;
defects

(2)
in

it
the

original 2009–2010 rulemaking; and (3) it did not apply a MAPAprovided review standard to legislative-review-stage violations of
the rulemaking process.
We recognize that, despite these errors, the court's
ultimate conclusion -- that the two-year filing limitation is
valid -- could be correct.

However, we are unable to affirm that

judgment in light of the district court's incomplete analysis, the
parties' deficient briefing, and the murky record before us.

We

thus remand the case to the district court to reevaluate the
validity of the two-year filing limitation.
On

remand,

the

district

court's

resolution

of

the

validity of the two-year filing limitation rule should apply the
MAPA-provided

judicial

review

guidance provided herein.

framework,

in

keeping

with

the

The public record for the 2009-2010

rulemaking process encompasses substantial materials far beyond
those initially presented to the district court.

The court may

order the parties to develop the record and provide further
briefing as necessary to make its determinations.

We do not opine

on whether materials beyond the 2009-2010 MAPA processes may be
germane to the section 8058 analysis.

We also do not opine on

whether a certified question for the Law Court about the interplay

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between MAPA's various provisions may be appropriate once the
record is developed.
IV. The Specific Misrepresentation Exception
The IDEA, and, in turn, MUSER, contain two exceptions to
time restrictions imposed by the filing limitation.

See 20 U.S.C.

§ 1415(f)(3)(D)(i)–(ii); MUSER § XVI.13.F(1)–(2).

Relevant here

is the "specific misrepresentation" exception, which sets aside
the filing limitation "if the parent was prevented from filing a
due

process

hearing

request

due

to

.

.

.

[s]pecific

misrepresentations by the [school district] that it had resolved
the problem forming the basis of the due process hearing request."20
MUSER § XVI.13.F–.F(1).
limitation

stands

at

Ms. S. argues that even if the filing
two

years,

the

IDEA's

specific

misrepresentation exception applies, and, as a result, the ninth
and tenth grade claims are not time barred.

Because we are

remanding the case to the district court to determine the validity
of the two-year filing limitation, we do not reach this issue.
V. IDEA Claims
Setting aside the ninth and tenth grade claims, we focus
on Ms. S.'s undisputedly timely claims.

Ms. S. argues that the

school district did not provide B.S. with a FAPE in his eleventh

20

The second exception sets aside the filing limitation's
time restriction if the school district withheld information that
it was required to provide to the parent. MUSER § XVI.13.F(2).

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and twelfth grade years.

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Under the IDEA, each state receiving

federal IDEA funding must provide a FAPE "to all children with
disabilities . . . between the ages of 3 and 21."
§ 1412(a)(1)(A).

20 U.S.C.

To ensure that this takes place, a school

district "must take steps to identify children who may qualify as
disabled,

evaluate

each

such

child

to

determine

his

or

her

eligibility for statutory benefits, and develop a customized IEP
designed to ensure that the child receives a level of educational
benefits commensurate with a FAPE."

Five Town, 513 F.3d at 285.

The IDEA also mandates that, "[t]o the maximum extent appropriate,"
a school district's special education accommodations should take
place in the "least restrictive environment" available.

20 U.S.C.

§ 1412(a)(5)–(a)(5)(A).
The IEP is "the centerpiece of the [IDEA]'s education
delivery system for disabled children."
305, 311 (1988).

Honig v. Doe, 484 U.S.

A customized IEP "must include, 'at a bare

minimum, the child's present level of educational attainment, the
short- and long-term goals for his or her education, objective
criteria with which to measure progress toward those goals, and
the specific services to be offered.'"

Esposito, 675 F.3d at 34

(quoting Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d
18, 23 (1st Cir. 2008)).

An IEP therefore "must target 'all of a

child's special needs,'" including a child's social limitations.
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1089 (1st Cir. 1993)

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(quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 788
(1st Cir. 1984)).

However, "[t]he IDEA does not promise perfect

solutions," id. at 1086, and "the obligation to devise a customtailored IEP does not imply that a disabled child is entitled to
the maximum educational benefit possible," Esposito, 675 F.3d at
34 (quoting Lessard, 518 F.3d at 23). We therefore review an IEP's
compliance with the IDEA based on whether the IEP is "reasonably
calculated to confer a meaningful educational benefit."

Esposito,

675 F.3d at 34.
A.

Eleventh Grade (2011–2012)
Ms. S. argues that, in eleventh grade, B.S. did not

receive adequate social skills instruction and that his mid-year
placement in the REAL School "was not reasonably calculated to
provide him with meaningful benefit."
The district court21 concluded that the hearing officer
adequately addressed the social skills instruction issue and that
the school district was not required "to provide a student with
his parent's first choice for services."

We agree.

In accordance

with his IEP, B.S. met weekly with speech pathologist Heath to
work on his speech, language, and social skills. During this time,
Heath consulted with school staff and Ms. S. concerning B.S., and

21

The district court adopted in full the magistrate judge's
recommendation concerning the eleventh and twelfth grade claims.
We therefore refer to the magistrate judge's recommendations on
these issues as the opinion of the "district court."

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B.S. told her 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."

That fall, when Ms. S. kept B.S.

home due to safety concerns resulting from bullying, the IEP team
met to address those concerns. Although the school did not satisfy
Ms. S.'s request to provide B.S. group-based social instruction
because of scheduling difficulties, B.S. was encouraged to engage
in group activities and was reported to have been doing so through
his involvement with the school's student union and sports teams.
The IEP team also enhanced B.S.'s IEP to include a one-on-one
educational technician escort in between all classes, to add a
behavior plan, and to require daily meetings with his school
advisor.

Although the plan may not have met the appellant's

specific requests concerning group-based instruction, the IEP team
put

in

place

limitations.

measures

to

address

B.S.'s

social

needs

and

The district court did not err in concluding that no

violation occurred.22

22

Ms. S. also argues that the district court held her to an
improper standard of proof when it stated that, "[i]n the absence
of any evidence that direct 'social skills instruction[]' . . .
would necessarily have significantly reduced BS's elopements or
significantly improved his relationships with his peers during his
first two months at a new school, the plaintiff takes nothing by
this argument." (second alteration in original). We do not read
this statement to establish a new burden of proof; instead, we
view it as an articulation of the fact that a particular service
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Ms. S. also argues that the school district's placement
of B.S. in the REAL School following his expulsion from Fryeburg
Academy did not meaningfully benefit B.S.

Ms. S. posits that the

REAL School did not provide B.S. with the appropriate programming
given the school's shortened day and lack of an on-staff speech
pathologist.

The district court found no evidence to support

Ms. S.'s conclusion that the REAL School was an improper placement
for B.S.

We again find no error in this determination.

Under

state regulations, an "abbreviated school day" is "any day that a
child . . . attends school or receives educational services for
less time than age/grade peers without disabilities within the
same school and/or school program." MUSER § II.1 (emphasis added).
B.S.'s day was no shorter than his peers at the REAL School.
fact,

school

officials

testified

that

the

REAL

In

School's

abbreviated day works out to the same amount of instructional time
as B.S. would have received at a traditional public high school
where students have significant amounts of "holding time," such as
homeroom and time between classes.

Furthermore, while the REAL

School did not have a speech pathologist on staff, Heath continued
to provide speech therapy to B.S. on a weekly basis while he
attended the REAL School.

Thus, the district court did not err

was no more likely to address B.S.'s social skills issues than the
ones already proposed and implemented by the school district.

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when it determined that B.S. received a FAPE in the eleventh grade,
and we affirm this judgment.
B.

Twelfth Grade (2012-2013)
Ms. S. asserts the same claims concerning the REAL School

in B.S.'s twelfth grade year as she did regarding his placement
there in his eleventh grade year.

The district court ruled that

B.S. again received a FAPE in twelfth grade.

For the reasons

discussed above, we affirm this judgment.
VI. Conclusion
For

the

foregoing

reasons,

we

vacate

the

district

court's judgment that the two-year filing limitation is valid under
the

Maine

APA

and

remand

to

the

district

proceedings consistent with this opinion.

court

for

further

We affirm the district

court's judgment that B.S. received a FAPE in the eleventh and
twelfth grades.

Each party shall bear its own costs.

So ordered.
--Concurring Opinion Follows--

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LYNCH, Circuit Judge, concurring.

Entry ID: 6017821

With the greatest

respect for my colleagues, I write separately to express my views.
I fully join the holding affirming that B.S. received a
free appropriate public education ("FAPE") under the Individuals
with Disabilities Education Act ("IDEA"), for his eleventh and
twelfth grade years.
The issue of the appropriate limitation period for the
filing of the plaintiff's claim, particularly as to the ninth and
tenth grade years, is controlled by a federal statute, 20 U.S.C.
§ 1415(f)(3)(C), which receives too little attention from the
parties.

That federal statute states that a parent has two years

to file a complaint from when the parent "knew or should have known
about the alleged action that forms the basis of the complaint, or
if the State has an explicit time limitation for requesting such
a hearing under this subchapter, in such time as the State law
allows."

Id.; see also 34 C.F.R. § 300.511(e).

As I understand

the provision, a state's limitation period is adopted if and only
if the state has an "explicit time limitation," otherwise the
federal default period of two years is used.
The parties have assumed that Maine has an "explicit
time limitation" in its state regulation, Me. Code R. 05-071, Ch.
101

("MUSER")

§

XVI.13.E,

which

on

limitation period of two years.

its

face

provides

for

a

Ms. S. assumes that she is

nonetheless free to attack the validity of this state regulation

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using the Maine Administrative Procedure Act ("MAPA"), as a matter
of application of the governing federal IDEA statute.

Based on

that assumption, she argues that the state regulation is invalid
under MAPA.

The school system responds by defending the state

regulation's validity in like terms.
It

is

not

clear

that

the

intent

of

20

U.S.C.

§ 1415(f)(3)(C) is to permit a federal court to decide state
administrative

procedure

questions

about

the

explicitly stated state administrative provisions.
that we are to take the state law on its face.

validity

of

It could be

Then again, it may

be that those uncertainties about the time period under MAPA mean
that Maine has not met the "explicit time limitation" requirement
of the federal statute.

If so, we would find the two-year federal

limitation period applies for the ninth and tenth grade years.

In

either of the above-described scenarios, we would find that the
governing limitation period is two years, that the plaintiff's
claims as to the ninth and tenth grade years are not timely, and
that judgment should be entered against her on those claims.
On the other hand, there may be reasons to think that
the state law validity issue should be resolved.

Still, that does

not answer the question of who should resolve the issue or say
that the federal court should resolve it. The parties have utterly
failed to adequately brief the federal issues and have encouraged
the court to enter the state law briar patch.

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My colleagues are

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not to be faulted for walking down the path that the parties laid
out for them.
Nevertheless,

as

to

answering

the

question

of

the

validity of the limitation period under Maine law, my view is that
it is not the business of a federal court to tell Maine how to
interpret its own administrative law.

Doctrines of federalism,

comity, and abstention all counsel against such incursions.

See

The Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate
Info. Servs., 608 F.3d 110, 119 (1st Cir. 2010) ("There are . . .
strong federalism interests that are furthered by providing the
state courts with the opportunity to decide on underlying unsettled
questions of state law."), certified question answered, 946 N.E.2d
665 (Mass. 2011).
To the extent that the state regulation validity issue
governs the timeliness analysis, I would have preferred to send
this matter to the Maine Supreme Judicial Court for resolution or
to have abstained and let the state courts resolve this matter.

I

agree that the question is important to the administration of IDEA
programs and services in Maine, and that is exactly why the Maine
Supreme Judicial Court, and not this court, should decide the state
law question.

See Fortin v. Titcomb, 671 F.3d 63, 71 (1st Cir.

2012) (certifying where "the choice between these two paths [was]
a matter of state policy best left to the state's courts"),
certified question answered, 60 A.3d 765 (Me. 2013).

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the conditions for certification have been met.

Entry ID: 6017821

See Darney v.

Dragon Prods. Co., LLC, 994 A.2d 804, 806 (Me. 2010).

And here,

we would benefit from certifying a question to the Maine Supreme
Judicial Court, as we have in the past. See, e.g., Fortin, 671
F.3d at 64.23

23

As the majority notes, the district court may employ a
method to have the state courts address the state law questions
when it deems the record sufficiently developed.
I also think that on remand the FAPE question may be
answered as to the ninth and tenth grade years before addressing
the question about whether the claim was timely made as a matter
of Maine law. That is, if the district court finds that FAPE was
provided as to those years, that would end the lawsuit.

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APPENDIX
This appendix lists the above-referenced provisions of
the Maine Administrative Procedure Act, the formal title of each
provision, and a brief description of each provision's relevant
content.
Section 8052.
process

for

agency

"Rulemaking" - Sets forth the general

adoption

of

a

rule,

which

includes

the

requirements that an agency provide notice, hold a public hearing
in certain circumstances, and adopt a written statement addressing
submitted comments.

See Me. Rev. Stat. Ann. tit. 5, § 8052.

Section 8053.

"Notice" - Sets forth specific notice

requirements, including necessary content and prescribed methods
of publication.

See id. § 8053.

Section 8054.

"Emergency rulemaking" - Sets forth the

process for agency adoption of an emergency rule, as opposed to an
emergency

major

description

of

substantive
the

rule.

provision

See

id.

concerning

§

8054.

emergency

For

a

major

substantive rulemaking, see infra section 8073.
Section 8056.

"Filing and publication" - Sets forth the

agency requirements for submitting an adopted rule to the Maine
Secretary of State for approval and publication.
Section 8057.

See id. § 8056.

"Compliance" - Explains that rules not

adopted in accordance with certain parts of sections 8052 and 8056,
or with sections 8053 and 8054 are "void and of no legal effect,

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except that insubstantial deviations from the requirements of
section 8053 do not invalidate the rule."
Section 8058.

Id. § 8057.1–.2.

"Judicial review of rules." - Sets forth

the review standards for different types of MAPA violations,
requiring automatic invalidation if the rule exceeds the agency's
rulemaking authority or if the rule is void under section 8057,
and requiring the courts to apply a harmless error review to "any
other procedural error."
Section 8071.

Id. § 8058.1.
"Legislative review of certain agency

rules" - Defines "major substantive rules" and subjects such rules
to legislative review in accordance with the procedures set forth
in section 8072.

See id. § 8071.

Section 8072.

"Legislative review of major substantive

rules" - Sets forth the procedures for legislative review of major
substantive rules and mandates that such rules have "legal effect
only after review by the Legislature followed by final adoption by
the agency."

Id. § 8072.1.

Section 8073.

"Emergency major substantive rules" -

Sets forth the process for agency adoption of an emergency major
substantive rule, and allows, in some circumstances, for such rules
to "be effective for up to 12 months or until the Legislature has
completed review."

Id. § 8073.

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