Mr. F. v. MSAD #35

MR. F. et al., Plaintiffs, v. MSAD #35, Defendant.

Docket No. 2:20-cv-00220-NT

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

May 21, 2021

ORDER ON PLAINTIFFS' IDEA APPEAL

Plaintiffs Mr. F. ("Father") and Ms. H. ("Mother") (collectively, the "Parents") are the parents of A.F., a school-age child with a disability. The Defendant is Maine School Administrative District #35 (the "District"), which was the local educational agency responsible for making a free appropriate public education ("FAPE") available to A.F. under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400-1482.

The Parents challenge the decision reached by a Maine Department of Education due process hearing officer ("DPHO"), which ruled that the District did not violate the IDEA's child find obligation. See 20 U.S.C. § 1412(a)(3)(A). For the reasons that follow, the Court DENIES the Parents' request for relief.

STATUTORY AND REGULATORY BACKGROUND

I. The IDEA

The IDEA requires states to "identif[y], locate[ ], and evaluate[ ]" all "children with disabilities" residing in the state, 20 U.S.C. § 1412(a)(3)(A), and in Maine, that responsibility lies with school districts, 20-A M.R.S. § 7202(1). This statutory requirement is known as the IDEA's "child find" requirement. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009). A "child with a disability" is defined as a child with an impairment "who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A). A child who has a disability but who does not need special education is not a "child with a disability" under the IDEA. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 73 n.1 (1st Cir. 2016); 34 C.F.R. § 300.8(a)(2).

A state's child find obligation extends to "[c]hildren who are suspected of being a child with a disability . . . and in need of special education." 34 C.F.R. § 300.111(c)(1). But school districts need not "conduct a formal evaluation of every struggling student," D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); accord W.A. v. Hendrick Hudson Cent. Sch. Dist., 927 F.3d 126, 144 (2d Cir. 2019), cert. denied, 140 S. Ct. 934 (2020), or jump to the conclusion that any abnormalities in behavior denote a disability, D.K., 696 F.3d at 251.

A school district's child find obligation is triggered when the district has reason to suspect three things: (1) that a child has a qualifying disability, (2) that the child needs special education and related services, and (3) that that need for special education is due to the disability.¹ Doe v. Cape Elizabeth Sch. Dep't, 382 F. Supp. 3d83, 99 (D. Me. 2019) (internal quotation marks omitted); see Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 5, 14 (1st Cir. 2007). A school district violates its child find obligation when "school officials overlook[ ] clear signs of disability and [are] negligent in failing to order testing, or [when] there [is] no rational justification for" the school's failure to evaluate the child. Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007) (internal quotation marks omitted); accord Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018); see Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1119 (9th Cir. 2016) ("[A] disability is 'suspected,' and therefore must be assessed by a school district, when the district has notice that the child has displayed symptoms of that disability."). For example, "the informed suspicions" of a child's parents might trigger a school district's child find obligation, even where the school district questions these suspicions. See Timothy O., 822 F.3d at 1120-21.

In assessing whether a district's child find obligation is triggered, the first question is whether the district had reason to suspect that the child has a qualifying disability. Qualifying disabilities are designated by federal law and include emotional disturbance ("ED"), autism, other health impairment ("OHI"), and multiple disabilities. 20 U.S.C. § 1401(3)(A); 34 C.F.R. § 300.8. Federal and state regulations set the criteria for what constitutes each qualifying disability, see 34 C.F.R. § 300.8(c); 05-071 C.M.R. ch. 101, Me. Unified Special Educ. Reg. Birth to Age Twenty("MUSER"), § VII(2) (2017), each of which, as relevant here, requires that the impairment "adversely affect[ ]" the "educational performance" of the child, see Mr. I., 480 F.3d at 11.

Maine defines "adverse effect" as "a negative impact that is more than a minor or transient hindrance, evidenced by findings and observations based on data sources and objective assessments with replicable results." MUSER § II(3). While this adverse effect cannot be minor or transient, see id., it need not be substantial or significant, Mr. I., 480 F.3d at 13.² Normal, age-appropriate behavior is not considered to be an "adverse effect." MUSER § II(3) ("An adverse effect on educational performance does not include a developmentally appropriate characteristic of age/grade peers in the general population.").

As for what comprises a child's "educational performance," Maine defines this term to encompass "performance in those academic and functional areas . . . assessed through the local [school district's] own curriculum," which includes "how the child demonstrates his/her skills and behaviors in cognition, communication, motor, adaptive, social/emotional and sensory areas." Id. § II(10), (15). Qualifying children are entitled "to services that target all of their special needs," not just academic ones, to include, for example, social and emotional skills and behaviors. Mr. I., 480 F.3d at 12 (internal quotation marks omitted).

A child with a disability is eligible for an individualized education program ("IEP"). See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). And while an IEP need not address problems that are truly distinct from learning problems, because Maine defines "educational performance" to include more than just academics, a child may be eligible for special education due to deficits in non-academic areas. Mr. I., 480 F.3d at 12.³

The second part of the child find obligation asks whether the district has reason to suspect that the child with a qualifying disability needs special education and related services. Maine considers a child to " 'need[ ]' special education and related services when, because of the disability, the child can neither progress effectively in a regular education program nor receive reasonable benefit from such a program in spite of other services available to the child." MUSER § VII(2). "If the child find process indicates that a child may require special education . . . to benefit from regular education," a referral to determine eligibility is required. Id. § IV(2)(D) (emphasis added).

Finally, the third requirement of the child find obligation is satisfied if the district has reason to suspect that the qualifying disability is the cause of the child's need for special education and related services. Once a school district has "identif[ied]" a student through the child find process—that is, once it has reason tosuspect that the child might require special education due to his/her disability—the district must refer the child for a special education evaluation within a reasonable time. W.A., 927 F.3d at 133; D.K., 696 F.3d at 250.⁴

Parental consent is generally required before a school district may initiate an evaluation.⁵ See 34 C.F.R. § 300.300(a); MUSER § V(1)(A)(4)(a)(i). And the district "must make reasonable efforts to obtain" a parent's "informed consent." 34 C.F.R. § 300.300(a)(1)(iii); MUSER § V(1)(A)(4)(a)(i); see Me. Dep't of Educ. Admin. Letter No. 85 (June 12, 2012), available at https://mainedoenews.net/2012/06/12/clarification-of-saus-obligation-to-refer-students-to-special-education/ ("[W]hile parents ultimately have the authority to withhold consent for evaluation, the [school district] is nevertheless required to convene a meeting at which the student's current performance and need for further evaluation can be discussed, so that the parents' decision is an informed one."). That is, the parents must be "fully informed of all information relevant to the activity for which consent is sought." 34 C.F.R. § 300.9(a); MUSER § II(6)(A).

The school district must also provide the child's parents with written notice of any district "propos[al]" or "refus[al] to initiate or change[ ] the identification [or] evaluation of the child," and this notice must include the district's reason for its intentor refusal to act. 20 U.S.C. § 1415(b)(3), (c)(1); accord 34 C.F.R. § 300.503(a), (b). After parental consent is received, the school district has forty-five school days to not only complete the evaluation, but also to "proceed to determine if the child is a child with a disability." MUSER § V(1)(A)(3)(a).

A violation of the child find obligation is a procedural violation, Mr. P, 885 F.3d at 750; D.K., 696 F.3d at 249, and thus cannot always give rise to a cause of action. Rather, a violation of the child find obligation is only cognizable if it impedes a child's right to a FAPE, results in a significant impediment to the parents' opportunity to participate in the IDEA decision-making process, or causes a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see Pollack v. Reg'l Sch. Unit 75, 886 F.3d 75, 80, 87 (1st Cir. 2018).

In evaluating whether the child find obligation has been violated, and whether that procedural violation has substantive consequences, I must evaluate the reasonableness of the delay between the date the child find obligation was triggered due to notice of a likely disability and the date that obligation was satisfied. Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781, 793 (5th Cir. 2020), cert. denied, 141 S. Ct. 1389 (2021). "A delay is reasonable when, throughout the period between notice and referral, a district takes proactive steps...