MORRISON v. PERRY SCHOOL DEPARTMENT

Filing 44

REPORT AND RECOMMENDED DECISION re 27 IDEA ADMINISTRATIVE RECORD. Objections to R&R due by 7/25/2019. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFREY MORRISON,
Plaintiff
v.
PERRY SCHOOL DEPARTMENT,
Defendant

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1:18-cv-00106-DBH

RECOMMENDED DECISION ON ADMINISTRATIVE RECORD
Plaintiff, as a parent of JM, a minor, alleges Defendant, JM’s school district,
violated due process and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1400 et seq. in connection with JM’s education plan. (Complaint, ECF No. 1.) Plaintiff
appeals from the results of a due process hearing under the IDEA and state law, in which
proceeding the Hearing Officer found in favor of Defendant.
The matter is before the Court on Plaintiff’s challenge to the Hearing Officer’s
decision on the administrative record. (ECF No. 27.) Plaintiff raises both substantive and
procedural challenges.
Following a review of the administrative record and after consideration of the
parties’ arguments, I recommend the Court grant judgment in favor of Defendant.
STATUTORY BACKGROUND
Under the IDEA, each state “must provide a free appropriate public education—a
FAPE, for short—to all eligible children” in order to receive certain federal funds. Endrew

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

Id. § 1414

(d)(1)(A)(i)(III).
“If parents are concerned that their child is not receiving a FAPE, they can file a
complaint with the local educational agency.” Pollack v. Reg’l Sch. Unit 75, 886 F.3d 75,
79 (1st Cir. 2018) (citing 20 U.S.C. § 1415(b)(6)(A)). “They can argue that their child is
being denied a FAPE substantively, on the grounds that his or her IEP lacks certain special
education or related services.” Id. at 80 (citing 20 U.S.C. 1415(f)(3)(E)(i)). “And they can
argue that their child is being denied a FAPE due to procedural violations that, for example,
significantly impede the parents’ opportunity to participate in the IDEA decisionmaking
process.” Id.

(citing 20 U.S.C. § 1415(f)(3)(E)(ii)(II) (internal quotations and

modifications omitted). Filing a complaint begins a series of administrative procedures,
including an “impartial due process hearing” before the state educational agency, the Maine
Department of Education. 20 U.S.C. § 1415(f)(1)(A), (g); 20-A M.R.S. § 7207-B; 05-071
2

C.M.R. ch. 101, § XVI.

Following the educational agency’s final decision on the

complaint, an “aggrieved party” may file an action in state or federal court seeking relief
from the decision. 20 U.S.C. § 1415(i)(2)(A).
FACTUAL AND PROCEDURAL BACKGROUND
A.

Grade Three: 2014-15 School Year
Before March 2015, JM received special education and related services under a

“Speech/Language Impairment” classification. (R. 1009, 1011.)1 JM’s IEP included twice
weekly thirty-minute sessions with a speech pathologist and daily support services with a
special education teacher. (R. 1009.)
On March 10, 2015, the IEP team met for an annual review and discussed updates
to JM’s IEP. (R. 1008 – 09.) The team decided to modify JM’s IEP, retaining the twiceweekly thirty-minute speech pathologist sessions, removing JM from monitoring status,
adding one-hour daily instruction in a “resource room,” and adding certain classroom and
testing accommodations. (R. 1009.) The IEP team questioned whether the speech and
language category was the correct classification for JM and determined that JM’s parents
would pursue an evaluation for Attention Deficit Hyperactivity Disorder (ADHD). Id.
On June 24 and July 29, 2015, Jennifer Curran, Ph.D., evaluated JM at
Developmental Pediatrics in Bangor. (R. 1039 – 49.) Dr. Curran determined that JM “is
exhibiting attentional dysregulation that is consistent with a diagnosis of ADHD,
Inattentive Type.” (R. 1047.)

1

(R. ___ ) refers to pages of the administrative record.

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B.

Grade Four: 2015-16 School Year
On September 23, 2015, the IEP team met to reevaluate JM’s IEP. (R. 1050.) The

team modified the IEP to replace the Speech/Language Impairment classification with an
“Other Health Impairment” classification due to the ADHD. (R. 1051, 1057.) Plaintiff
requested a one-to-one educational technician for JM, but the other members of the IEP
team did not agree that the addition was warranted. (R. 1052.) The team did not modify
the special education and support services in the IEP. (R. 1051.)
On December 3, 2015, the IEP team met to discuss concerns that Plaintiff raised by
email. (R. 1068.) Plaintiff again inquired about an after-school tutor and a one-on-one
educational technician to support JM throughout the day, but the remainder of the IEP team
(the classroom teacher, special education teacher, speech language assistant, speech
language pathologist, and JM’s mother) determined that the services were not required.
(R. 1069.) Plaintiff also inquired about perceived discrepancies between JM’s reading
grade level on his report card and a testing metric. (R. 1071.) Plaintiff further asked to
have an advocate/tutor participate in the meeting; after JM’s mother objected, Plaintiff
agreed to proceed rather than be forced to postpone the meeting. (R. 1149 – 53.)
The IEP team held a follow-up meeting on January 14, 2016. (R. 1073.) Plaintiff
expressed concern about JM’s performance on certain tests. (R. 1077 – 79.) Plaintiff and
the advocate/tutor did not agree with the IEP team regarding the additional services they
requested for JM. (R. 1074, 1151 – 53.) The IEP team agreed to consider Plaintiff’s

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request for extended year services when the team met again for JM’s next annual meeting
in March 2016.2 (R. 1074, 1077.)
On March 8, 2016, the IEP team met for the annual review of JM’s IEP. (R. 1098.)
Plaintiff and the advocate/tutor reiterated their requests for an after-school tutor, extended
year services, and in-class assistance from an educational technician rather than out-ofclass sessions. (R. 1099.) JM’s mother reported that JM did not want or need a one-onone educational technician, and the rest of the IEP team believed that it would constitute a
more restrictive environment than the current services. (R. 1099 – 1100.) The team
retained the twice weekly thirty-minute sessions with a speech pathologist and modified
the IEP to reflect JM’s performance and goals, including a goal in the academic area of
reading to be addressed by hour long sessions with a special education teacher five times
per week.3 (R. 1099, 1104 – 12.)
On May 10, 2016, the IEP team met to consider additional concerns Plaintiff raised.
(R. 1124.) Plaintiff and the advocate/tutor requested individualized instruction for writing,
but the rest of the team did not agree. (Id.) The classroom teacher reported that JM’s
writing was comparable to grade level peers. (Id.) The team updated the IEP to include
additional accommodations including an agreement to mark work completed in the

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On January 21, 2016, Plaintiff filed a Dispute Resolution Request Form with the Maine Department of
Education requesting mediation to address his requests for an educational technician, after-school tutoring,
and extended year services. (R. 1080 – 94.) On March 14, 2016, the parties convened a mediation, but the
mediation did not resolve the issues. (R. 1113.)
The educator members of the IEP team said the intent of a FAPE is to provide services “reasonably
calculated to enable the child to receive educational benefit,” not to provide services superior to those
students without disabilities receive. (R. 1099.)
3

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resource room, an agreement to mark both the original and new grade whenever JM was
allowed to redo the work, and to provide JM with verbal reminders to write dates on papers.
(R. 1124, 1139.)
On July 5, 2016, Plaintiff filed a complaint with the state educational agency. (R.
1148.) On August 25, 2016, after receiving documents and conducting two interviews, the
complaint investigator found two violations of procedural regulations. (R. 1151 – 53.)
Plaintiff had complained about the IEP team’s response to the advocate/tutor he brought to
the meetings beginning in December 2015. (R. 1150 – 51.) The investigator found that
Defendant properly allowed the advocate/tutor to participate in the more recent meetings,
but violated MUSER § VI.2B(5) and (8) by prohibiting the advocate/tutor from
participating in the first meeting on December 3, 2015. (R. 1151.) The investigator also
found a procedural violation when Defendant declined to modify records from IEP team
meetings, which records Plaintiff disputed, because Defendant had failed to notify Plaintiff
of his right to a hearing on the issue as required under 34 CFR 300.619. (R. 1152 – 53.)
The state agency ordered Defendant to provide Plaintiff with written assurances that it
would not repeat the violations in the future. (R. 1151 – 53.)
C.

Grade Five: 2016–17 School Year
On February 3, 2017, Plaintiff filed another complaint with the state education

agency. (R. 1228.) While the complaint was pending, on March 30, 2017, the IEP team
met for another annual review. (R. 1209.) Plaintiff and the advocate/tutor again sought
100 percent placement in the classroom with the assistance of an educational technician,
an after-school tutor, and extended year services; they also asked to add to the IEP a goal
6

and special instruction in the academic area of writing, but the rest of the team disagreed.
(R. 1210.) The only changes the team made to the IEP were updates to JM’s performance
and goals. (R. 1210 – 25.)
On April 7, 2017, after receiving documents and conducting six interviews, the
complaint investigator issued a report addressing Plaintiff’s February 3 complaint. (R.
1228.) The investigator found no violations regarding JM’s advancement or progress
toward the established goals, Plaintiff’s requests for extended year services, Plaintiff’s
requests for a goal and special instruction in the academic area of writing, and the alignment
of the goals to state standards. (R. 1239 – 34.) The investigator found the sixty-minutes
per day sessions in the resource room to be a violation of the requirement that the student
be placed in the least restrictive environment because the special services amounted to
“guided study hall,” which could have been provided in the classroom. (R. 1240 – 41.) He
also determined that Defendant measured JM’s performance in subjective terms and thus
was in violation of the requirement that IEP goals be objectively measurable and that
quarterly reports be provided to parents; the investigator explained that “without objective
data of this kind, the Student’s father was unable to gauge the meaning and validity of the
progress reports.” (R. 1242 – 43.) The investigator directed Defendant to conduct
professional training for its employees in the writing of measurable IEP goals, to reevaluate
JM, and to modify the IEP if JM was still eligible for special education services. (R. 1244.)
After the IEP team met again for further discussion on May 8, 2017, (R. 1258), with
the consent of JM’s mother, Defendant arranged for new evaluations. (R. 1246 – 57.)
Keith Hansen, Psy.D., was scheduled to conduct one part of the evaluation on May 15,
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2017, but Plaintiff arrived at school and removed JM for the day. (R. 1266.) The Maine
Department of Education reviewed Defendant’s compliance documentation and
determined that Defendant was in compliance with the corrective action plan; it closed its
case on May 24, 2017. (R. 1314 – 16.)
D.

Grade Six: 2017–18 School Year
On June 29, 2017, Dr. Hansen evaluated JM, who was accompanied by his mother.

(R. 1342.) On August 4, 2017, after considering the results of the June evaluation and
reviewing a series of evaluations and reports from educators, Dr. Hansen issued a report
provisionally diagnosing JM with a learning disorder in written expression and a central
auditory processing disorder. (R. 1342, 1357.) JM’s performance on a series of cognitive
tests varied, but generally was in the low average range when compared to other children
his age. (R. 1357.) JM had particular weaknesses in the area of working memory and
processing speed. (R. 1346.) Dr. Hansen found that a diagnosis of ADHD was “not
supported” by the current evidence because “[w]hile [JM] evidenced impairments in
cognitive efficiency often associated with the diagnosis, his . . . impairments associated
with ADHD were associated with auditory demands only,” (R. 1358), while his attention
with visual demands “was reasonably effective.” (R. 1355 – 56.)
On October 5, 2017, the IEP team discussed the Hansen report. (R. 1395 – 99.) The
IEP team, with the consent of JM’s mother, decided to perform further evaluations as Dr.
Hansen recommended, namely an audiological evaluation and an occupational therapy
evaluation. (R. 1396.) The team suggested that the IEP would not change at that time, but

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it intended to modify JM’s IEP in the future to cease speech services and update the services
and goals depending on the results of the additional evaluations. (Id.)
E.

The Administrative Hearing
On July 24, 2017, Plaintiff filed a due process hearing request form with the Maine

Department of Education, initiating case No. 18.008 before that agency. (R. 1 – 7, 1330 –
36.) Plaintiff claimed Defendant had failed to provide JM a FAPE under the three IEPs
from 2015 to 2017, and further asserted that procedural violations had deprived Plaintiff of
his right to participate in JM’s education. (Id.) On August 9, 2017, Defendant filed a
motion with the Hearing Officer seeking to dismiss the issues arising before July 24, 2015,
citing the applicable two-year statute of limitations. (R. 200.) On August 30, 2017, the
parties conducted a mediation and agreed that the previous special education teacher, who
was now retired, would no longer be involved in JM’s education. (R. 1374 – 76, 337.) The
parties did not resolve the remaining issues Plaintiff raised in the hearing request form.
(Id.) On September 29, 2017, the Hearing Officer conducted a preliminary hearing to
consider Defendant’s partial motion to dismiss; the Hearing Officer subsequently granted
the motion. (R. 87, 111 – 18.)
On October 5, 2017, Plaintiff challenged Dr. Hansen’s evaluation and requested
independent expert evaluations of JM at public expense, which request required Defendant
to request a due process hearing thereby initiating case No. 18.029. (R. 90 – 93, 1389 –
95.) Defendant moved to consolidate the two hearing requests. (R. 98.) On October 9,
the Hearing Officer granted the consolidation request. (R. 102.)

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On October 20, 2017, Plaintiff asked the Hearing Officer to recuse herself from the
due process hearing, citing a number of pre-hearing decisions and communications that
Plaintiff believed showed partiality toward Defendant. (R. 168 – 170.) On October 21,
2017, Plaintiff filed a motion in limine with the Hearing Officer to exclude two documents
in JM’s record containing information about a state court case involving Plaintiff. (R. 172
– 73.) Plaintiff argued that the evidence had “no relevance to the issues brought in the Due
Process Complaint.” (Id.)
The due process hearing was held over three days from October 23 to October 25,
2017. (R. 178.) The Hearing Officer denied Plaintiff’s motion for recusal, motion for a
continuance, and motion to compel the production of evidence. (Id.) The Hearing Officer
granted Plaintiff’s motion in limine. (Id.) On December 15, 2017, the Hearing Officer
issued her ruling (R. 326 – 48), in which ruling she denied Plaintiff’s substantive and
procedural FAPE claims (R. 332 – 43), and denied Plaintiff’s request for independent
expert evaluations at public expense. (R. 343 – 47.)
On January 2, 2018, Plaintiff filed another due process hearing request, initiating
case No. 18.060, which was assigned to the same hearing officer. (P. 804.)4 Plaintiff
alleged that the most recent IEP “has not been implemented”, and that “[s]ervices [JM] was
receiving were removed . . . .” (P. 800 – 01.) On January 8, 2018, Defendant moved to
dismiss certain issues and objected to the sufficiency of the hearing request under MUSER
XVI.6(B)(5) because it did not specifically describe the aspects of the IEP that Plaintiff

4

(P. ___ ) refers to the additional documents Plaintiff filed in paper form with the complaint to supplement
the administrative record, as reflected at ECF No. 1-1.

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contends Defendant failed to implement or the services that were allegedly removed. Id.
On January 10, 2018, the Hearing Officer dismissed claims she had addressed in the prior
hearing and granted leave for Plaintiff to amend and refile his hearing request by January
15, 2018. (P. 805.)
On January 15, 2018, Plaintiff again moved for the Hearing Officer to recuse
herself. (P. 807.) On January 17, 2018, the Hearing Officer denied Plaintiff’s motion to
recuse, and granted Plaintiff an additional five days to respond to the opportunity to amend
the hearing request. (P. 818.) On January 22, 2018, Plaintiff argued that a hearing officer
lacks authority to order a party to amend a hearing request. (P. 820 – 21.) On January 23,
2018, the Hearing Officer dismissed case No. 18.060 without prejudice. (P. 822.)
Plaintiff subsequently filed a complaint in federal court seeking relief from the
Hearing Officer’s orders. (ECF No. 1).
STANDARD OF REVIEW
“District courts considering challenges to administrative IDEA decisions apply an
intermediate standard of review” often characterized as “involved oversight.” Johnson v.
Bos. Pub. Sch., 906 F.3d 182, 190–91 (1st Cir. 2018); Roland M. v. Concord Sch. Comm.,
910 F.2d 983, 989 (1st Cir. 1990).
A district court reviews the administrative record, which may be
supplemented by additional evidence from the parties, and makes an
independent ruling based on the preponderance of the evidence. However,
that independence is tempered by the requirement that the court give due
weight to the hearing officer’s findings. As a result, a district court’s review
“falls somewhere between the highly deferential clear-error standard and the
non-deferential de novo standard.

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D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35–36 (1st Cir. 2012) (internal
quotations, modifications, and citations omitted). “When dealing with issues that implicate
factual determinations made by the administrative agency, [courts] will give more
deference to the hearing officer’s findings. However, when confronting an issue that is
more a matter of law, [courts] will give less deference as the educational expertise of the
agency is not implicated.” Doe v. Cape Elizabeth Sch. Dep’t, No. 2:18-CV-00259-LEW,
2019 WL 1904670, at *9 (D. Me. Apr. 4, 2019) (internal quotations and citations omitted).
In IDEA due process hearings and lawsuits challenging whether a school district
has met its procedural and substantive obligations to provide a FAPE, the burden of
persuasion rests “as it typically does, on the party seeking relief.” Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 51 (2005).
DISCUSSION
A.

Substantive IDEA Claim
“To meet its substantive obligation under the IDEA, a school must offer an IEP

reasonably calculated to enable a child to make progress appropriate in light of the child’s
circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct.
988, 999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.
Rowley, 458 U.S. 176, 207 (1982). This standard contemplates a “meaningful educational
benefit,” Johnson 906 F.3d at 194, and “is markedly more demanding than [a] ‘merely
more than de minimis’ test . . . .” Endrew F., 137 S. Ct. at 999. The ultimate question,
however, is on “whether the IEP is reasonable, not whether the court regards it as ideal.”
Id. at 1000.
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“Actual educational progress can (and sometimes will) demonstrate that an IEP
provides a FAPE.” Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 29 (1st
Cir. 2008). But “the inverse of this rule” is not always true, because “an inquiring court
ought not to condemn [an IEP] ex post merely because the disabled child’s progress does
not meet the parents’ or the educators’ expectations.” Id.
In this case, the Hearing Officer supportably determined that the IEP was reasonably
calculated to enable JM to make meaningful progress. The record includes ample evidence
that JM in fact made considerable academic progress. (R. 335–40.) The persuasive
evidence cited by the Hearing Officer included testimony from JM’s fourth and fifth grade
classroom teachers, testimony from his special education teacher, JM’s performance on
graded assignments, and a variety of test results conducted before, during, and after the
time period of the relevant IEPs. Furthermore, Dr. Hansen’s evaluation included an
assessment of JM’s cognitive abilities (or IQ)5 and found that JM’s performance on
contemporaneous academic performance tests was consistent with other students of similar
cognitive abilities at his age. (R. 1345, 1353 – 56, 1358.)
In support of his claim, Plaintiff cites JM’s performance on the reading portion of
periodic in-class computerized tests. Although Plaintiff points to some of the evidence that
might support his contention, (see R. 461), most of the test results reflect that JM has made
meaningful academic progress. (See R. 1195 – 98.) Contrary to Plaintiff’s argument, a
decline in testing percentile rank does not imply a lack of progress; instead, the result

Dr. Hansen’s 2017 assessment of JM’s cognitive abilities was also quite consistent with Dr. Curran’s 2015
results, R.899, and Dr. Sholtz’s 2011 results, R. 988, bolstering the reliability of Dr. Hansen’s conclusions.
5

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simply reflects a slower progression than his peers, including peers without any
impairments. See Johnson, 906 F.3d at 194 (explaining that courts have repeatedly
emphasized the FAPE standard’s focus on the individual child’s circumstances).
Even if a lower test result in the area of reading evidenced a lack of progress in
reading, the result would not amount to a FAPE denial because the FAPE assessment is
based on the entire academic record and in this case, the record includes other substantial
evidence of gains in reading and other academic areas. See Lessard, 518 F.3d at 30 (“The
test is whether the IEP, taken in its entirety, is reasonably calculated to enable the particular
child to garner educational benefits. Were the law otherwise, parents could endlessly parse
IEPs into highly particularized components and circumvent the general rule that parents
cannot unilaterally dictate the content of their child's IEP”) (internal citations omitted). For
instance, although Plaintiff resisted more recent efforts to cease special education services
in the area of speech, the record includes evidence of significant progress in that area.
Furthermore, none of JM’s evaluations suggests a need for special education in math, and
the record shows that JM made meaningful progress in math.
Even if the record established a difference between academic test results and
cognitive tests results, or an absence of demonstrable improvement in academic test scores
between 2015 and 2017, that evidence, without more, would not necessarily satisfy
Plaintiff’s burden. See Lessard 518 F.3d at 29. Although Defendant initially disagreed
with Plaintiff’s concerns about JM’s difficulties in the area of writing, the record lacks any
evidence to suggest Defendant declined to modify the IEP to account for the more recent

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diagnosis of a writing impairment.6 In short, a review of the record reveals that Defendant
willingly reassessed JM’s needs and implemented IEPs reasonably calculated to provide
meaningful progress based on the information available to Defendant at the time.
One apparent deficit in JM’s IEPs is the lack of objective measurable goals in certain
areas, as identified by the state agency.

Given the record evidence of meaningful

educational benefit of the IEP, the Hearing Officer appropriately declined to award a
remedy beyond the state investigator’s earlier corrective action. Compensatory education
is not warranted because the record lacks any evidence to support the conclusion that JM’s
education was impeded as the result of the deficit. The record also reflects that Defendant
corrected the issue for JM and other students receiving special education services.
In sum, the record establishes that the IEPs were reasonably calculated to allow JM
to make meaningful academic progress. Plaintiff is not entitled to relief simply “because
[JM’s] progress does not meet the parents’ or the educators’ expectations,” see Lessard,
518 F.3d at 29, or because the IEP was not “ideal.” See Endrew F., 137 S. Ct. at 999.
Defendant, therefore, is entitled to judgment in its favor on Plaintiff’s substantive claims.
B.

Procedural Claims
Plaintiff also alleges various procedural deficiencies in the administrative process.

In addition to the substantive requirements of the IDEA, an IEP is subject to procedural

6

In addition, because Plaintiff did not argue at the administrative hearing that the lack of a writing goal in
the IEP amounted to a FAPE denial, that issue is unexhausted and therefore cannot serve as grounds for
relief in this proceeding. See Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (“IDEA
requires that a plaintiff raise or exhaust claims concerning a disabled child’s educational situation in the
due process hearing”) (internal quotation marks omitted).

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requirements flowing from state or federal law. Lessard, 518 F.3d at 23; 20 U.S.C. §
1415(a). “In matters alleging a procedural violation,” the only remedy available is an order
to “a local educational agency to comply with procedural requirements,” 20 U.S.C. §
1415(f)(3)(E)(iii), unless the procedural inadequacies (1) “impeded the child’s right to a
[FAPE],” (2) “significantly impeded the parents’ opportunity to participate in the
decisionmaking processes,” or (3) “caused a deprivation of educational benefits.” Id. §
1415(f)(3)(E)(ii). Accordingly, “[w]ithout finding the denial of a FAPE, a hearing officer
may do nothing more than order a school district to comply with the Act’s various
procedural requirements.” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 754 n.6 (2017).
“Similarly, a court in IDEA litigation may provide a substantive remedy only when it
determines that a school has denied a FAPE.” Id. at 754 n.7; see also Maine Sch. Admin.
Dist. No. 35 v. Mr. R., 321 F.3d 9, 19 (1st Cir. 2003) (“We recognize that compensatory
education is not an appropriate remedy for a purely procedural violation of the IDEA”). 7

7

Prospective relief might be moot because there is some evidence in the record suggesting that JM must
attend school in another district during the 2019-20 academic year. During summer 2015, Defendant’s
Superintendent addressed Plaintiff’s request for a superintendent’s transfer agreement to permit Plaintiff’s
children to continue to attend Perry Elementary School despite Plaintiff’s lack of residency in Perry due to
a fire that damaged Plaintiff’s home in Perry. (R. 1145.) In his response to Plaintiff’s request, the
Superintendent informed Plaintiff that the children could continue to attend school in Perry because of the
extenuating circumstances and because Plaintiff expressed his intent to relocate to Perry. Id. The following
summer, on August 10, 2016, the Superintendent asked Plaintiff for a copy of Plaintiff’s driver’s license
and a tax bill or lease. (R. 1143.) On August 22, 2016, citing the best interests of his children, the
McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11432 (g)(3)B), his two other properties in Perry,
and his position on the Perry Planning Board and Equipment Committee, Plaintiff stated that he considered
the matter an extension of the Superintendent’s decision from the 2015-16 school year. (R. 1144.) The
Superintendent later denied Plaintiff’s request for a transfer agreement, but JM continued to attend school
in Perry during the pendency of this lawsuit, prompting a request for a stay-put order, which the Court
denied on January 16, 2019. (Recommended Decision, ECF No. 34 at 8 n.5; Order, ECF No. 36.)
Even if JM is not scheduled to attend school in Perry for the 2019-20 academic year, the Court likely
maintains jurisdiction over the case because Plaintiff’s requested relief can fairly be construed to include a
request for compensatory education. See E.D. ex rel. Doe v. Newburyport Pub. Sch., 654 F.3d 140, 143

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As explained above, JM’s IEPs were reasonably calculated to provide meaningful
academic progress given JM’s circumstances and JM in fact made meaningful progress.
Any procedural irregularities, therefore, did not deprive JM of a FAPE or deprive him of
educational benefit. Any procedural irregularities during the relevant time period also did
not significantly impede Plaintiff’s right to participate in the decisionmaking progress. The
record reflects that Plaintiff was informed and consistently involved in the process, together
with the advocate/tutor. In fact, Plaintiff had near perfect attendance at the relevant
meetings.

The record also includes hundreds of pages of email and written

communications between Plaintiff and Defendant. Plaintiff’s ability to participate in the
decisionmaking process was not impeded by any alleged procedural shortcomings.
Moreover, Plaintiff obtained appropriate relief for any notable procedural
deficiencies. The state agency addressed the lack of objective measurable targets,
Defendant’s initial resistance to participation of the advocate/tutor, and the lack of certain
notices following disputes about the content of meeting records. The record establishes
that Defendant is now in compliance with the state agency’s corrective actions.
The remaining procedural issues raised by Plaintiff also do not warrant any relief
from this Court. For example, Plaintiff notes that the written effective date for the IEPs
was the same date as the written notice that contains a record of the IEP team meeting,

(1st Cir. 2011) (“While their move would obviously affect any claim the Does might make for prospective
relief from any failure to provide an IEP [c]overing the period after their removal, it did not moot the claim
for fees . . . .”); D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 497 (3d Cir. 2012) (out-of-state
move did not moot claim for compensatory education); Indep. Sch. Dist. No. 284 v. A.C., by & through her
Parent, C.C., 258 F.3d 769, 775 (8th Cir. 2001) (out-of-district move did not moot claim for compensatory
education).

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rather than the actual effective date. Any error would be harmless given that Plaintiff
apparently had prior notice of the meetings and of Defendants’ intent regarding the
implementation of the IEPs, and the record lacks any evidence that JM’s service levels
changed when they should not have changed. Plaintiff also disputes whether Defendant
provided all records that Plaintiff was entitled to receive, including progress reports and
progress notes. The record does not support a finding that Defendant failed to provide any
documents to which Plaintiff was entitled.
Plaintiff’s contention that the Hearing Officer should have recused herself because
she was partial to Defendant is also unavailing.8 Because “[t]here is little precedent for
how a federal district court should resolve a challenge” involving the impartiality and
recusal of a hearing officer, courts have looked “to the practice of appellate courts in
reviewing recusal issues involving federal district judges. . . .” Falmouth Sch. Comm. v.
B., 106 F. Supp. 2d 69, 73 (D. Me. 2000). The record lacks any evidence that would rebut
the presumption of honesty and integrity due to the Hearing Officer. See Mr. & Mrs. V. ex
rel. H.V. v. York Sch. Dist., 434 F. Supp. 2d 5, 12 (D. Me. 2006). Plaintiff’s arguments
amount to a series of disagreements with the Hearing Officer’s pre-hearing rulings, but
such “rulings alone almost never constitute a valid basis for a bias or partiality motion.”
Liteky v. United States, 510 U.S. 540, 555 (1994).

8

Plaintiff raised this issue as a due process violation, but also at times argues that it constitutes a denial of
IDEA procedures and state regulations guaranteeing an “impartial” due process hearing and a qualified
hearing officer. See e.g. 20 U.S.C. 1415(f)(1)(A) – (3)(A).

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In addition, contrary to Plaintiff’s argument, by any objective measure, the Hearing
Officer’s rulings do not reveal inadequate qualifications to preside over cases as a hearing
officer. Plaintiff objects, for example, to the Hearing Officer’s legal knowledge and
qualification, citing the Hearing Officer’s reliance on Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982), which reliance Plaintiff
argues revealed a lack of legal knowledge. According to Plaintiff, the Hearing Officer
improperly relied on the legal standard in Rowley rather than the standard set forth in
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017). The
decision in Endrew F. did not overrule or replace Rowley. Endrew F. clarified how the
Supreme Court’s approach in Rowley applied in circumstances that the Rowley Court
declined to consider. See Endrew F., 137 S. Ct. at 998 – 99. The Hearing Officer
demonstrated an understanding of this relationship by discussing both decisions. See R.
332, 339. Plaintiff’s challenge to the qualifications of the Hearing Officer and the Hearing
Officer’s impartiality thus fails.
C.

Independent Evaluation at Public Expense Claim
Plaintiff argues the Hearing Officer improperly denied his request for an

independent evaluation of JM at public expense following Dr. Hansen’s evaluation.
Among the IDEA procedural safeguards is the right “to obtain an independent educational
evaluation of the child.” 20 U.S.C. § 1415(b)(1). “[I]f the parent disagrees with an
evaluation obtained by the public agency” the parent can request an independent
educational evaluation at public expense. 34 C.F.R. § 300.502(B)(1) – (2); MUSER
V.6(B)(1). The school district may then request a hearing “to show that its evaluation is
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appropriate.” 34 C.F.R. § 300.502(B)(2)(i); MUSER V.6(B)(2). “The right to have a
school district pay for an independent evaluation, therefore, is a backstop. It offers a parent
a remedy when a school district fails to carry out its evaluative responsibilities properly.”
S. Kingstown Sch. Comm. v. Joanna S., 773 F.3d 344, 347 (1st Cir. 2014).
Plaintiff has failed to cite any legitimate inadequacy in the evaluation conducted by
Dr. Hansen.

Dr. Hansen appears to be well-qualified and his methodologies were

consistent with other expert evaluators. He relied on multiple tests, his observations, and
information he obtained from JM’s parents and teachers. Dr Hansen provided a thorough
and reasoned assessment of JM’s prior ADHD diagnosis, raised the likelihood of an
auditory processing deficit, validated Plaintiff’s concerns about JM’s abilities in the area
of writing, and did not minimize JM’s need for special education services. The Hearing
Officer properly determined that Defendant satisfied its burden to establish that Dr.
Hansen’s evaluation was appropriate.
D.

Dismissal of Case No. 18.060
Plaintiff challenges the Hearing Officer’s January 23, 2018, dismissal without

prejudice of his hearing request regarding Defendant’s alleged failure to implement the IEP
in effect while this Court considered his legal challenge to the prior IEPs. The Hearing
Officer justifiably dismissed the case after Defendant challenged the sufficiency of
Plaintiff’s hearing request on the grounds that it lacked the requisite specificity. Plaintiff’s
argument that the Hearing Officer lacked the authority to order him to amend his request
is without merit. The Hearing Officer did not exceed her authority by allowing Plaintiff
the opportunity to amend his request and by directing Plaintiff to file an amended form to
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avoid possible dismissal. When Plaintiff failed to amend the request to include the required
specificity, the Hearing Officer dismissed the matter.

Under the circumstances, the

dismissal was within the authority of the Hearing Officer.
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant judgment in favor of
Defendant on the administrative record.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and any request shall be filed within fourteen (14) days after the filing of the
objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 11th day of July, 2019.

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