MR AND MRS DOE v. CAPE ELIZABETH SCHOOL DEPARTMENT

Filing 33

ORDER ON PLAINTIFFS APPEAL OF THE ADMINISTRATIVE HEARING OFFICERS DECISION re 10 IDEA ADMINISTRATIVE RECORD filed under seal by CAPE ELIZABETH SCHOOL DEPARTMENT (This document was filed in paper; no document attached) filed by CAPE ELIZABETH SCHOOL DEPARTMENT By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MR. and MRS. DOE, individually and as
parents of JANE DOE, a minor,

)
)
)
Plaintiffs,
)
)
v.
) Civil No. 2:13-cv-00407-JDL
)
CAPE ELIZABETH SCHOOL DEPARTMENT, )
)
Defendant.
)
ORDER ON PLAINTIFFS’ APPEAL OF
THE ADMINISTRATIVE HEARING OFFICER’S DECISION
In this action, the plaintiffs, Mr. and Mrs. Doe (“Jane’s parents” or “the Does”),
request that the court vacate a Due Process Hearing Officer’s decision under the
administrative procedures of the Individuals with Disabilities in Education Act
(“IDEA” or “the Act”), 20 U.S.C. § 1415(i)(2). For the reasons stated below, I find that
the Hearing Officer’s decision should be affirmed.
I. FACTUAL BACKGROUND
After careful review of the hearing record, I adopt the facts that are set forth
in detail in the Due Process Hearing Officer’s decision, dated October 15, 2013, see R.
152-175, and which are summarized here.
The Does bring this appeal on behalf of their fifteen year-old daughter, “Jane,”
who is in the tenth grade at Cape Elizabeth High School and who has received special
education services related to her reading skills for most of her childhood. ECF No.
26 at 2; R. 153. In Jane’s third grade year, a school district psychologist, Dr. Alina

Perez-Smith, evaluated Jane and diagnosed her with a reading disorder, describing
her abilities as “typical of dyslexic individuals.” R. 154. Shortly thereafter, Jane’s
IEP Team concluded that Jane qualified as a student with a disability under the
IDEA. R. 155.
In December 2012, the defendant, Cape Elizabeth School Department (“Cape
Elizabeth” or “the school district”) conducted a triennial reevaluation of Jane which
consisted of a psychological evaluation performed by Laura Manuel, a school
psychologist; an academic evaluation performed by Tammy Thatcher, a special
education teacher; and interviews with Jane’s teachers and parents. R. 164, 510. The
results of Manuel’s psychological evaluation and Thatcher’s academic evaluation
showed that Jane achieved “average or higher scores” on a battery of tests, with one
exception: Jane scored in the “low average” range of the “Rapid Naming Composite”
portion of the Comprehensive Test of Phonological Processing (“CTOPP”).”1 R. 510.

Jane’s performance on the testing that was performed by Manuel and Thatcher is described in the
record as follows:
1

On the WISC-IV test of cognitive abilities, [Jane’s] scores were 108 for verbal
comprehension (70th percentile), 99 for working memory (47th percentile), and 115 for
processing speed (84th percentile). The first two scores were in the average range, and
the processing speed score was high average. On the WMRT-III, a reading test, [Jane]
scored in the average to above-average range on all tests, with a standard score of 100,
or the 50th percentile, on oral reading fluency, one of [Jane’s] area of challenge. Her
above average scores were in the reading comprehension cluster, which was one of her
areas of strength, where she scored in the 95th percentile. [Jane’s] GORT-5 score was
a 92, which was the 30th percentile, with a score in the 25th percentile for reading
rate . . . . In lieu of the CMS, Ms. Manuel administered the Wide Range Assessment of
Memory and Learning (WRAML-2), which she believed was the preferred measure for
testing memory for someone [Jane’s] age. [Jane’s] scores on the WRAML-2, which was
comprised of 12 tests, were all in the average range, except that she obtained a high
average score in the 79th percentile on visual memory. Her attention/concentration
score, although in the average range, was on the low end of that spectrum, in the 27th
percentile. For phonological processing, [Jane] was administered CTOPP [the
“Comprehensive Test of Phonological Processing”]. Although five years earlier, [Jane]

2

Jane’s IEP Team gathered in January 2013 to review the results of the
previous month’s triennial reevaluation.

In addition to the results of the

psychological and academic evaluations administered by Manuel and Thatcher, the
IEP Team reviewed Jane’s classroom progress and performance; the results of her
most recent 2012 NWEA and 2011 NECAP tests, state-mandated standardized tests
on which Jane met or exceeded grade level expectations for both reading and math;
and input from Jane’s parents and teachers. R. 509-10. The IEP Team also noted
that Jane was receiving “A” grades in all of her classes. R. 166.
Using the Maine Department of Education Learning Disability Evaluation
Report (“LD Document”), and with the above factors in mind, the IEP Team concluded
that Jane no longer qualified as a student with a learning disability as defined by the
Maine Unified Special Education Regulation (“MUSER”), ME ADC 05-071, Ch. 101,
§§ VII.2.L(2)(a) and VII.2.L(2)(c) (2014). R. 504-505 (LD Document dated January 3,

demonstrated a weakness [in] phonological awareness, she scored in the average range
in that area, with a score of 109, and in the average range for phonological memory
and alternate rapid naming. All of her processing scores were average or above except
in the area [of] rapid naming, where her score was in the low average range of 82. This
is an area of relative weakness for her. To be 1.5 standard deviations below the mean
would be a standard score of 78 or below, and a 1.0 standard deviation would be an 85
or below. The Test of Orthographic Competence is an academic test that measures
skills in conventions, spelling speed and spelling accuracy. [Jane] scored in the
average range on conventions and spelling speed, but was below average on spelling
accuracy. Based upon the results of these assessments, [Jane’s] score in one area,
rapid naming, was 1.0 standard deviation below the mean . . . . On the TOWRE-2 . . .
[Jane’s] score on sight word efficiency was 100, which is average, and 95 on phonemic
decoding efficiency, which was also in the average range. [On the] TOWL-4 . . . [Jane’s]
performance . . . ranged from average to superior. With the exception of spelling, which
was her lowest score, in the 37th percentile, her remaining scores were on the high end
of the average scale to superior. Her superior score was in spontaneous writing, where
her composite score was in the 98th percentile. [Jane] was also given the WJ-III
fluency tests . . . . [Jane’s] reading and math fluency scores were in the average range,
and her writing score was high average.
R. 164-166 (citations and footnote omitted).

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2013).

Jane’s parents disagreed with this conclusion, and filed a due process

complaint, resulting in a settlement agreement whereby Jane was allowed to retain
her IDEA eligibility while the Does sought and obtained private academic and
psychological evaluations. R. 167.
In February 2013, the Does retained Victoria Papageorge, an educational
consultant and evaluator, to perform a private academic evaluation of Jane, and also
retained Richard Doiron, Ph.D., a clinical neuropsychologist and licensed school
psychologist, to perform a private psychological evaluation. R. 167-68. Papageorge
administered many of the same academic tests that Cape Elizabeth had administered
during Jane’s triennial review, with Jane scoring noticeably lower on three of them:
either below average or “low average” on the TOWRE-2, WRMT-III, and the GORT5.2 Id. Papageorge also administered the Symbol Imagery Test, which measures
accuracy and efficiency in visual processing, on which Jane scored in the fifth
percentile.

Id.

Papageorge concluded that Jane should still qualify for special

education services and later testified at the Due Process Hearing (the “Hearing”) that
Jane demonstrated continued weaknesses with phonological processing, visual
processing, and orthography, and required intensive remediation in reading fluency.
R. 168, R. 1201-04.

Jane’s performances on the tests administered by Papageorge were as follows: on the TOWRE-2,
Jane scored an 88, or 21st percentile, on sight word efficiency and an 87, or 19th percentile, on
phonemic decoding. Her score on the WRMT-III was a 98, or 45th percentile. Her scores on the GORT5 were in the “low average” range, with an oral reading “index” of 84, or 14th percentile. R. 167.
2

4

On Dr. Doiron’s psychological evaluation, Jane scored in the average range to
high average on most measures, with the exception of tests designed to measure
“pseudoword decoding,” oral reading fluency, spelling, and reading rate.3 R. 168-69.
In March 2013, Papageorge and Doiron completed their evaluations. Before
Doiron issued his report, Papageorge contacted Doiron and asked him to administer
another test to Jane, the RAN/RAS. R. 170. Papageorge could not administer the
test herself because she was not licensed to do so, and wrote to Doiron telling him
that “if we don’t have at least 2 scores of 85 or less or one of 78 . . . the school district
is not going to accept that [Jane] has a learning disability, although our tests indicate
otherwise.” Id. Although Doiron had already completed his evaluation and had never
administered the RAN/RAS test before, Doiron agreed to administer it to Jane. Id.

3

The record describes Jane’s performance on the tests administered by Doiron as follows:
[Doiron] administered several tests, including the Children’s Memory Scale
[CMS]. [Jane] scored in the average range on all measures except visual
immediate index, on which she scored in the high average range. On the
attention/concentration index, [Jane’s] scores increased from very low in 2007
(5th percentile) to average (42nd percentile) in 2013. Dr. Doiron also
administered the WIAT-III. On the subtests, [Jane] scored above grade level
and average or above (considerably above average on some tests) on most of
the tests, except in her areas of weakness: pseudoword decoding (grade 6.2 or
34th percentile), oral reading fluency (grade 7.7 or 42nd percentile) and
spelling (grade 7.5 or 32nd percentile). [Jane] also took the Nelson Denny
Form G reading test, scoring in the solid average range on vocabulary and
comprehension, but only in the seventh percentile on reading rate. The Nelson
Denny reading rate test is a one-minute prompt, but it only counts number of
words read, not accuracy . . . [Dr. Doiron] used this test because he believed it
was more demanding than the WIAT-III in that it required the ability to read
under time pressure more dense text information similar to what [Jane] would
be reading in high school and college. Ms. Manuel testified that this test is not
a measure of reading fluency, as there is no measure for accuracy, and as it is
not a processing measure, it cannot be used to assess or diagnose processing
disorders.

R. 168-69 (citations omitted).

5

He told Papageorge that he hoped they would obtain the scores they needed so that
Jane would be identified as having a learning disability. Id. Instead, Jane performed
well on the RAN/RAS, achieving scores in the average range.4 Id.
Doiron issued his final evaluation report in April 2013, in which he diagnosed
Jane with reading disorder dyslexia; attention deficit hyperactivity disorder,
predominantly inattentive type; and adjustment disorder with anxiety secondary to
her dyslexia.

Id.

Doiron’s report made no mention of the fact that he had

administered the RAN/RAS to Jane, or her scores.

Id.

Like Papageorge, he

recommended specialized instruction in the area of reading fluency. R. 170-71.
Jane’s IEP Team reconvened in May 2013 to review the competing public and
private psychological and academic evaluations of Jane. R. 171. As in their January
meeting, the IEP Team also discussed Jane’s classroom progress and performance;
the results of her most recent 2012 NWEA and 2011 NECAP tests, on which she met
or exceeded grade level expectations for both reading and math; and input from Jane’s
parents and teachers. R. 1170-1175. The IEP Team memorialized its deliberations
in a document called the “Written Notice,” a copy of which was later sent to the Does.
Id.
According to the Written Notice, the IEP Team heard presentations by
Papageorge and Doiron in which they summarized the results of their respective
academic and psychological evaluations. R. 1171. Doiron stated his opinion that Jane

Jane’s scores on the six RAN/RAS measures ranged from a “high average” measure on one test, to
a score in the 37th percentile on another, and scores in the 65th to 82nd percentile on the remainder.
R. 170.
4

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is a student with a dyslexic profile who “developmentally can’t process what she needs
to academically at her grade level.” Id. He did not disclose to the IEP Team that he
had administered the RAN/RAS to Jane the previous month, or that Jane had
achieved scores primarily in the average range.5 Id. Papageorge discussed Jane’s
performance on the Symbol Imagery Test, and stated her opinion that Jane required
specialized reading instruction. Id. The Does argued that Jane had a processing
disorder based upon her below-average performance on three tests: the Symbol
Imagery Test, the Test of Orthographic Competence (“TOC”), and the CTOPP. R. 172.
Manuel, the school psychologist, criticized the test results relied upon by the
Does, stating that out of the three tests they cited, only the CTOPP measured
psychological processing. Id. She also observed that Jane achieved scores in the
average to high average range on all of the subtests that constitute the CTOPP except
for one score in the low average range. R. 1171. See also, R. 172. Manuel stated
further that there was no empirical evidence that the Symbol Imagery Test was a
valid or reliable measure of Jane’s reading ability, leaving only the TOC and CTOPP
as evidence of a possible processing disorder. Id. These tests were only two out of
the 48 administered, however, and Manuel explained that “she would not make a
decision [about whether Jane qualified as a student with a learning disability] based
upon two out of 48 tests.” R. 172. Finally, Jane’s language arts and social studies
teacher, her math teacher, and her Spanish teacher each spoke very positively about
her successful academic performance. R. 172-73.

5

The record does reflect that Doiron did show Jane’s RAN/RAS scores to Manuel. R. 172 n.7.

7

After discussing the psychological evaluations, the IEP Team concluded that
Jane did not have a “processing disorder” as defined by MUSER because she did not
score within the statistical range required by MUSER § VII.2.L(2)(a)(ii): 1.5 standard
deviations below the mean in at least one area of psychological processing, or 1
standard deviation below the mean in two or more areas.6 R. 1176.
The IEP Team also concluded that Jane was achieving adequately for her age
and meeting State-approved grade-level standards in all areas, satisfying identical
federal and state requirements contained in 34 C.F.R. § 300.309(a)(i) and MUSER §
VII.2.L(2)(c)(i). The IEP Team based its conclusion upon a “compilation of data,”
which included: (1) the fact that Jane had received or was receiving ‘A’ grades in all
of her classes for the last two academic trimesters as well as the current one; (2) her
Winter 2013 NWEA scores in reading, which were in the 89th percentile; (3) her Fall
2012 NECAP scores in reading, which were “proficient/with distinction”; and (4)
Jane’s Fall 2012 Writing Benchmark, which produced scores of two (partially meeting
standards) and three (meeting standards).

R. 1171-72.

The IEP Team also

considered the results of the academic evaluations administered by Cape Elizabeth
and Papageorge. Id.
The IEP Team’s decision meant that Jane did not qualify as a student with a
learning disability under the IDEA. The Does dissented and renewed their due

The Written Notice states that the IEP Team based its conclusion in part on Manuel’s psychological
evaluation, which “yielded average range or higher scores in all areas being assessed with the
exception of the Rapid Naming Composite on the CTOPP.” R. 1171. The Written Notice also states
that the IEP Team based its conclusion in part on Doiron’s psychological evaluation, in which “[Jane’s]
performance on the Wisconsin Card Sort, CMS, Verbal Fluency Test and Rey Osterreith’s Complex
Figures Test revealed scores falling in at least the average range.” Id.
6

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process complaint shortly thereafter. The parties participated in a special education
due process hearing pursuant to 20 U.S.C. § 1415 et. seq. and 20-A M.R.S. § 7207-B,
over four days in July, August, and September 2013.

ECF No. 27 at 7.

In a

comprehensive decision dated October 15, 2013, Hearing Officer Shari Broder, Esq.
(the “hearing officer”), concluded that Cape Elizabeth did not violate the IDEA as a
result of the IEP Team’s determination. R. 187. She also determined that Cape
Elizabeth’s psychological and academic evaluations of Jane were appropriate under
the IDEA and that the Does were not entitled to reimbursement for the Papageorge
and Doiron evaluations they had obtained in preparation for the IEP Team meeting.
Id.
The Does filed their appeal of the hearing officer’s decision in this court on
November 4, 2013.

ECF No. 1.

The parties participated in an oral argument

regarding their respective memoranda of law on November 20, 2014. ECF No. 32.
II. LEGAL STANDARD
A.

IDEA
The IDEA, 20 U.S.C.A. § 1400 et seq. (2014), is a landmark federal statute

which Congress enacted twenty-five years ago in order to “offer[] federal funds to
states that agree to provide protections to make sure disabled children receive a free
appropriate public education.” South Kingston Sch. Comm. v. Joanna S., 2014 WL
6892132, *1 (1st Cir. Dec. 9, 2014) (internal quotation marks omitted).
In order to provide a free appropriate public education, a school must create
and then follow an “individualized education program” (“IEP”) for each disabled child.

9

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

The IEP is “a

written statement for each child with a disability that is developed, reviewed, and
revised” in accordance with the IDEA and which must include the following: a
statement of the child’s present levels of academic achievement and functional
performance; a statement of measureable annual goals; criteria for measuring
progress toward those goals; and a statement of the specific services that the school
will offer. 20 U.S.C.A. § 1414(d)(1)(A)(i) (2014).
The Act imposes additional procedural and substantive requirements with
regard to the IEP. See Roland M. v. Concord School Comm., 910 F.2d 983, 987 (1st
Cir. 1990). For example, parents have the right to be part of the IEP “team” along
with the teachers and other educational professionals charged with formulating a
child’s particular IEP. 20 U.S.C.A. § 1414(d)(1)(B); Lessard v. Wilton-Lyndeborough
Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). The purpose behind such procedural
safeguards is to “guarantee parents both an opportunity for meaningful input into all
decisions affecting their child’s education and the right to seek review of any decisions
they think inappropriate.” Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184, 187 (1st
Cir. 1993) (quotation omitted). Thus, in the event of a dispute between the school
and the child’s parents regarding the IEP, the parents have the right to demand a
hearing by an impartial hearing officer. 20 U.S.C.A. § 1415(f)(1)(A), (B)(ii) (2014). A
party dissatisfied with a hearing officer’s decision may appeal to a state court or a
U.S. District Court, which must (i) receive the records of the administrative
proceedings; (ii) hear additional evidence at the request of a party; and (iii) grant

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relief as it deems appropriate based upon the preponderance of the evidence. 20
U.S.C.A. § 1415(i)(2)(A), (2)(C).
A court’s authority to grant relief under the Act “includes the power to order
school authorities to reimburse parents for their expenditures on private school
education for a child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act.” Pihl, 9 F.3d at 188 (quoting School
Comm. of Town of Burlington, Mass. v. Dep’t. of Educ. of Mass., 471 U.S. 359, 369
(1985)).
B.

Standard and Scope of Review
The District Court reviews the hearing officer’s decision based on a

preponderance of the evidence standard. 20 U.S.C.A. § 1415(i)(2)(C); D.B., 675 F.3d
at 35-36. The burden of proof rests on the party challenging the hearing officer’s
decision. Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992). “[T]he
provision that a reviewing court base its decision on the ‘preponderance of the
evidence’ is by no means an invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities which they review.” Board
of Educ. of Hendrick Hudson Central Sch. Dist., et. al. v. Rowley, 458 U.S. 176, 206
(1982), superseded by statute on other grounds, N.B. v. Hellgate Elementary Sch. Dist.,
541 F.3d 1202, 1213 n.3 (9th Cir. 2008). The requirement that a reviewing court must
“receive the records of the administrative proceedings” implies that “due weight shall
be given to those proceedings.” Rowley, 458 U.S. at 206 (quotation omitted). “Judges
are not trained pedagogues, and they must accord deference to the state agency’s

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application of its specialized knowledge.” Lessard, 518 F.3d at 24 (citing Gonzalez v.
P.R. Dept. of Educ., 254 F.3d 350, 352 (1st Cir. 2001)) (other citations omitted).
Therefore, “the appropriate level of review by District Courts [is characterized] as
‘involved oversight,’ a standard which falls somewhere between the highly deferential
clear-error standard and the non-deferential de novo standard.” South Kingston Sch.
Comm., 2014 WL at *4 (quoting Sebastian M. v. King Phillip Reg'l Sch. Dist., 685 F.3d
79, 84 (1st Cir. 2012)) (quotation marks and additional quotation omitted).
III. LEGAL ANALYSIS
In order to receive special education services under the IDEA, a student must
qualify as a “child with a disability.” 20 U.S.C.A. § 1401(3)(A)(i) (2014). See also, Mr.
I. ex rel. L.I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 4-5 (1st Cir. 2007). The
statute lists the qualifying disabilities, see § 1401(3)(A)(i), which are defined in the
Code of Federal Regulations (“CFR”). The disability at issue in this case is a “specific
learning disability” based on a psychological processing disorder:
[A] disorder in one or more of the basic psychological processes
involved in understanding or in using language, spoken or
written, that may manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or to do mathematical calculations,
including conditions such as perceptual disabilities, brain injury,
minimal brain dysfunction, dyslexia, and developmental aphasia.
34 C.F.R. § 300.8(c)(10)(i).
To determine whether a student has a specific learning disability, her IEP
Team must examine two criteria: first, whether she achieves adequately for her age
or meets State-approved grade-level standards in one or more of eight specified areas,
including “reading fluency,” 34 C.F.R. § 300.309(a)(1)(i)-(viii) (2014); and second,
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whether she exhibits a pattern of strengths and weaknesses in performance,
achievement, or both, relative to her age.7 34 C.F.R. § 300.309(a)(2) (2014).
Maine’s special education regulation, the MUSER, contains the same
requirement and uses the same language as the federal regulation.

MUSER §

VII.2.L(2)(c)(i). The MUSER also contains a separate, additional provision not found
in the federal regulation. This additional provision states that an IEP Team may not
determine that a student has a specific learning disability unless she has taken a
peer-reviewed, scientifically-documented test of psychological processing and scored
1.5 or more standard deviations below the mean in one area of psychological
processing, or 1.0 standard deviation or more below the mean in two areas of
psychological processing.

MUSER § VII.2.L(2)(a)(ii) (the “empirical proof

requirement” or “section (a)”).
A.

Plaintiffs’ Objections to the Hearing Officer’s Decision
(1)

Psychological Processing Disorder

The Does argue that the Hearing Officer should have concluded that Jane had
a psychological processing disorder in the area of reading fluency based upon two
tests administered by Papageorge: the Nelson Denny reading test and the GORT-5.
ECF No. 26 at 26-28. They claim that the Hearing Officer improperly ignored these
“unusually low” test scores and instead relied on Jane’s grades and “passing scores
on some standardized tests” in reaching her conclusion. Id.

The second criterion, set forth in § 300.309(a)(2), is not at issue in this case. ECF No. 26 at 18 (“This
element has been established by a consensus of Jane’s IEP Team, so it is not at issue in this case.”).
7

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In fact, the Hearing Officer did consider Jane’s poor performance on the Nelson
Denny and GORT-5 tests, but she explicitly gave less weight to the results from
Papageorge’s evaluation because Papageorge “is not licensed or certified to diagnose
processing disorders or to evaluate them.”8 R. 183. And while Jane’s parents criticize
the Hearing Officer for considering Jane’s good performance on the NWEA and
NECAP tests, they fail to note that earlier in her decision, the Hearing Officer also
considered “31 subtests of processing abilities, including in areas of [Jane’s] historical
weakness, all but two [of which] . . . produced a score in the average or high average
range.” R. 182.
More broadly, the Does’ argument that the Hearing Officer “veered off course
into a consideration of Jane’s academic grades . . . and scores on Maine standardized
tests that do not measure reading fluency at all” is unsupported by any legal
authority and conflicts with the federal regulation and its state counterpart, MUSER
§ VII.2.L(2)(c)(i). 9 See ECF No. 26 at 27. Because § 300.309(a) and MUSER §
VII.2.L(2)(c)(i) both assign to the IEP Team the task of determining whether a
student “achieves adequately” for her age or meets “State-approved grade-level
standards,” consideration of grades and state standardized test scores is appropriate.
In fact, given that it is the hearing officer’s role to review and analyze the work of the
IEP Team, it is unclear how she could avoid an analysis that included the student’s

The Hearing Officer also gave less weight to Doiron’s testimony after finding that he undermined
his own credibility by withholding the RAN/RAS results from the IEP Team.

9 The lone citation in this section of the Does’ brief is to an eight year-old entry in the Federal Register
which does not mention the appropriateness or inappropriateness of considering a student’s grades
and standardized test scores. See ECF No. 26 at 27 (citing 71 Fed. Reg. 46,652 (August 14, 2006)).
8

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grades and state standardized test scores as part of the student’s record as a whole.
See J.B. v. Wells-Ogunquit Cmty. Sch. Dist., 2014 WL 4100903, *10-11 (D. Me. Aug.
18, 2014).
The Does also argue that they produced sufficient evidence that Jane suffers
from an orthographic processing disorder to satisfy the Maine empirical proof
requirement. ECF No. 26 at 24. They cite Jane’s scores on three tests administered
by Papageorge as part of her academic evaluation: the Symbol Imagery Test, the
CTOPP, and the Test of Orthographic Competence, each of which fell either 1.5
standard deviations or 1.0 standard deviation below the mean. ECF No. 26 at 25-26.
However, as the Hearing Officer noted and as discussed earlier, the Hearing Officer
gave reduced weight to the results of Papageorge’s academic evaluation because
Papageorge is not licensed or certified to diagnose processing disorders or to evaluate
them. R. 183; see also, supra. There was also testimony at the due process hearing
that the Symbol Imagery Test and the Test of Orthographic Competence are not
processing disorder assessments. R. 2084-2086. That leaves Jane’s CTOPP score,
which, by itself, does not satisfy the Maine empirical proof requirement. See ECF No.
26 at 25-26.
Finally, the Does and the school district disagree whether Jane performed
adequately on reading fluency probes administered during Jane’s ninth grade year
by Cape Elizabeth and by Barbara Melnick of the Aucocisco School. The Does claim
that Jane never achieved the desired rate of 150 words per minute on ninth gradelevel reading materials, citing her fluency probe scores from September and October

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2013 and January 2014, all of which were below 150. ECF No. 26 at 29; ECF No. 12
at 10, ¶ 27. Cape Elizabeth counters by citing Jane’s scores from April, June, and
August 2013, which were above 150. ECF No. 27 at 30. Each party insists that the
respective scores it cites more accurately reflect Jane’s abilities, while claiming that
the scores cited by the other party are inaccurate, not appropriately “normed,” not
the correct grade level, were achieved only after extensive rehearsal, were withheld
from evidence, etc. See ECF No. 27 at 29 and ECF No. 28 at 7. The reading fluency
probes received scant consideration before the parties filed their memoranda of law:
the Hearing Officer mentioned them only in passing, see R. 163, ¶ 25 and R. 174, ¶
41, while the IEP Team did not cite fluency probes at all in either the May 2013 LD
Document or the May 2013 Written Notice.
Based on the record before the court, I am ill-equipped to resolve the question
of which reading fluency probes are more accurate, nor is it necessary for me to do so
here. Given that the IEP Team did not consider this measure, and the Hearing
Officer gave no more than glancing consideration to it, the Does have not established
that fluency probe scores improperly led Cape Elizabeth to determine that Jane does
not qualify for special education services under § 300.309(a) and MUSER §
VII.2.L(2)(c)(i). I also conclude that the Does failed to establish by a preponderance
of the evidence that the IEP Team or the Hearing Officer somehow ignored the correct
fluency probe scores.
I therefore affirm the Hearing Officer’s conclusion that Cape Elizabeth did not
violate the IDEA when it determined that Jane does not qualify as a student with a

16

disability. The fact that the IEP Team based its analysis upon Jane’s psychological
and academic evaluations, her scores on state standardized tests, the testimony of
her teachers, and her excellent grades, did not violate § 300.309(a) or the equivalent
state regulation, MUSER § VII.2.L(2)(c)(i).
(2) Maine’s Empirical Proof Requirement
The Does argue that the Hearing Officer erred by refusing to declare that
section (a) of the MUSER (§ VII.2.L(2)(a)(ii)), is invalid and unenforceable because it
requires empirical evidence of a psychological processing disorder independent from,
and in addition to, the criteria listed in the federal regulation.10 ECF No. 26 at 17.
The Does assert that the empirical proof requirement “is found nowhere in federal
law and has been disavowed by the [the U.S. Department of Education].” Id. at 22
(emphasis in original). They cite regulatory guidance issued by the Department
which states that “it is not necessary for the [IEP Team] to demonstrate or measure
the existence of a basic disorder in psychological processing in order to determine that
a child has a specific learning disability.” Id. at 20 (quoting Letter to Kennedy, 16
IDELR 1082 (OSEP, June 29, 1990); see also, id. (citing Letter to Knewitz, 213 EHLR
246 (OSEP, Aug. 3, 1989)). The Does note further that the Department of Education’s
Letter to Hugo, 62 IDELR 211 (OSERS Nov. 5, 2013), contains a discussion of MUSER
§ VII.2.L(2)(a)(ii), stating that the provision might conflict with federal special
education regulations because requiring the use of a severe discrepancy between

The Hearing Officer concluded in her decision that she lacked the authority to make a determination
about the validity and enforceability of MUSER § VII.2.L(2)(a)(ii).
10

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intellectual ability and achievement is not permitted under 34 CFR § 300.307(a)(1).
Id. at 23.
Whatever the merits of this apparent discrepancy between MUSER’s empirical
proof requirement and the federal regulations, I conclude that I need not and,
therefore, should not determine in this case whether the empirical proof requirement
in MUSER § VII.2.L(2)(a)(ii) is unenforceable. The IEP Team’s decision to deny
Jane’s eligibility for special education services did not turn solely upon whether she
satisfied the empirical proof requirement.

Even though her scores on her

psychological evaluations fell within 1.5 standard deviations or 1.0 standard
deviation below the mean in areas of psychological processing, and therefore would
not have satisfied the MUSER requirement, the IEP Team also determined that Jane
did not qualify as a child with a disability. As measured by the requirements of the
federal regulations, the IEP Team reached this conclusion based on indicia showing
that Jane was achieving adequately for her age and meeting State-approved
guidelines—Jane’s grades, standardized test scores, and teacher feedback. These
findings were well-supported in the record, as evidenced by the Written Notice from
the May 2013 IEP Team meeting. These indicia of Jane’s better-than-adequate
achievement for her age demonstrate that the federal requirements for establishing
a specific learning disability were not met.
Should a future case arise in which a student, unlike Jane, is found to satisfy
the federal criteria to be deemed a child with a disability, but is denied that status
for failing to meet the separate MUSER empirical proof requirement, it would be

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necessary and appropriate for me to rule on the validity of the latter. Because Jane
was deemed ineligible under both the federal and Maine specific MUSER criteria,
and the record amply supports the IEP Team’s application of the federal criteria, I
decline to resolve this important legal question in this case.
Accordingly, because the Hearing Officer’s conclusion is independently
supported by her findings and conclusion regarding the federal requirements, I affirm
that conclusion and do not decide whether MUSER VII.2.L(2)(a)(ii) violates Federal
law.
(3) Reimbursement Issue
Finally, the Does claim that they are entitled to be reimbursed in the amount
of $2,970.00, representing the money they spent on the academic evaluation
conducted by Papageorge and the psychological evaluation conducted by Doiron. ECF
No. 26 at 35. They argue that Cape Elizabeth’s December 2012 triennial reevaluation
“lacked the appropriate breadth and depth required to identify the nature of Jane’s
processing deficit and its impact on her reading fluency ability.” Id. at 33. The
Hearing Officer determined that the Does were not entitled to reimbursement
because, pursuant to 34 CFR § 300.305(b), Cape Elizabeth demonstrated at the due
process hearing that its own evaluation of Jane was appropriate. R. 185-87 (“[the
school district’s] testing was more diverse and more objective than the tests conducted
by Dr. Doiron and Ms. Papageorge.”).
Having affirmed the Hearing Officer’s conclusion that Cape Elizabeth complied
with the requirements of § 300.309(a) when it determined that Jane did not qualify

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as a child with a disability, I therefore also affirm the Hearing Officer’s decision
denying reimbursement for the cost of Papageorge’s and Doiron’s evaluations.
IV. CONCLUSION
For the reasons discussed above, I conclude that Cape Elizabeth did not violate
the IDEA when it determined in the spring of 2013 that Jane was no longer eligible
to receive special education and related services pursuant to 34 CFR § 300.309(a),
MUSER § VII.2.L(2)(c)(i), and MUSER § VII.2.L(2)(a)(ii). I also conclude that the
Does are not entitled to reimbursement for the private academic and psychological
evaluations they obtained in preparation for the May 2013 IEP Team meeting.
Accordingly, the Hearing Officer’s decision is AFFIRMED.
SO ORDERED.
Dated December 29, 2014

/s/ Jon D. Levy
U.S. DISTRICT JUDGE

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