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Ms. S. v. Regional School Unit 72

United States Court of Appeals, First Circuit

July 15, 2016

MS. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellant,
REGIONAL SCHOOL UNIT 72, Defendant, Appellee.


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

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

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

          LIPEZ, Circuit Judge.

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

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

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

         I. Background

         A. B.S.'s Education

         B.S. received special education services on and off from kindergarten through high school to address developmental delays, particularly related to speech development. He was diagnosed with autism in high school. In detailing this history, we recite the facts pertinent to Ms. S.'s arguments on appeal.

         In 2009, B.S. enrolled in the ninth grade at Fryeburg Academy, a contract high school for students residing in Regional School Unit 72 (the "school district"). Before beginning school, an Individualized Education Program ("IEP") team composed of school staff, Ms. S., and B.S. met and determined that B.S. did not qualify for an IEP, but the team provided B.S. with a 504 Plan[1]to address language deficits. In ninth grade, B.S. also participated in Fryeburg Academy's "Transition Program" and was provided accommodations such as an allowance for delayed responses through his 504 Plan. By tenth grade, however, B.S. had a normal schedule of college-preparatory courses and no longer participated in the Transition Program.

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

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

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

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

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

         In the summer of 2012, the REAL School provided B.S. with nine hours of services with a licensed clinical social worker and three days of adventure programming. That same summer, licensed psychologist Laura Slap-Shelton concluded that B.S. had Autistic Disorder and "is a candidate for therapeutic residential placement for adolescents with Autistic Disorder and other developmental disorders."

         At the end of August 2012, B.S.'s IEP team met again to review Dr. Slap-Shelton's evaluation. A written notice from the meeting indicates that B.S. "liked attending the REAL School" and "would not like to see anything change." Ms. S. indicated that the lengthy commute to and from the REAL School limited B.S.'s time to socialize and that she would like to see B.S. placed in a residential setting. The team met again in early September 2012 and could not reach a consensus concerning Dr. Slap-Shelton's evaluation and diagnosis of autism. The team raised concerns that Dr. Slap-Shelton's evaluation "did not conform with either local or state standards for assessments." The team, however, agreed that B.S. should remain for a fifth year of high school for the 2013–2014 academic year. After the September 2012 meeting, a district-hired psychologist conducted additional testing of B.S.'s skills and potential disorders. The psychologist later testified that his role was not to make a diagnosis concerning autism, but that he "would be skeptical" of such a diagnosis. He also testified that a "residential program that requires 24-hours supervision doesn't seem to fit" B.S.'s needs, nor did an all-boys program.

         In his senior year at the REAL School, B.S. participated in service activities, and in an email to Ms. S., the director of the REAL School described B.S.'s participation as "stunningly active" and reported that "[B.S.] contributed so much leadership and kindness to our group." B.S.'s first quarter report card reflected a grade of 98 in English, math, and science, and a grade of 95 in social studies. However, Ms. S. continued to object to the school's shortened day and B.S.'s lengthy commute. On October 16, 2012, Ms. S. informed the school district 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.

          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 the Maine Unified Special Education Regulation ("MUSER"). The Maine APA governs the process to amend

          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. The first is the filing limitation, which, as discussed 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." Me. Code R. 05-071, Ch. 101 ("MUSER") § XVI.13.E. MUSER also contains a separate provision -- referred to 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 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 versions[4] 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- back term from four years to two years. 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. The Legislature's Joint Standing Committee on Education and Cultural Affairs ("Joint Standing Committee") considered the emergency and provisionally adopted rules in 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 two-year 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 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 School "and/or compensatory educational services for BS." The school district did not appeal the hearing officer's minor ruling in Ms. S.'s favor regarding the ten-day period following B.S.'s expulsion from Fryeburg Academy. 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 proposed two-year look-back term. 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- 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. See Me. Rev. Stat. Ann. tit. 5, § 8053. The second step, which is the primary focus of our analysis, requires legislative review of the proposed rule. See id. § 8072. 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. As we explain below, the court's assessment of the rulemaking's 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; 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 remand decision without describing the complexities of MAPA. We thus begin by examining MAPA's legal framework.

         A. MAPA ...

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