MS. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellant,
REGIONAL SCHOOL UNIT 72, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
Richard L. O'Meara, with whom Stacey D. Neumann, Caroline
J. Jova, and Murray, Plumb & Murray were on brief, for
R. Herlan, with whom Hannah E. King and Drummond Woodsum
& MacMahon were on brief, for appellee.
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
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.
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.
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
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.
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 Planto 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.
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.
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."
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.
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.
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
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."
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
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.
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.
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.
The Filing Limitation
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
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).
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.
to the MDOE's efforts to amend MUSER in 2009-2010, the
filing limitation and the look-back term each stood at four
years. 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).
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 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
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.
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.
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.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.
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.
sought judicial review in the district court, 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
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.
Standard of Review
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.
The Maine Administrative Procedure Act
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
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.
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.
we cannot explain our remand decision without describing the
complexities of MAPA. We thus begin by examining MAPA's