Lawsuit claims Cape Elizabeth schools failed disabled student

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CAPE ELIZABETH — The parents of a 17-year-old student diagnosed with psychological disorders are suing the School Department for costs associated with their daughter’s unilateral placement in two private schools.

In a complaint filed June 29 in federal court, the plaintiffs – identified as Mr. and Mrs. Doe, parents of student Jane Doe – argue that the schools failed to provide their daughter with services under the Individuals with Disabilities Education Act, which requires states that receive federal funding to provide a free public education to all eligible children with disabilities.

Their attorney, Richard O’Meara of Portland-based Murray, Plumb & Murray, on July 10 said the “lawsuit is in the process of being served on the school district … At this point, there is no response from the district.”

According to the lawsuit, filed in U.S. District Court in Portland, Jane Doe attended Cape Elizabeth schools from kindergarten through grade 11.

In January 2018, she completed high school and received her diploma from Stansbury Academy in Sandy, Utah, after her parents withdrew her from Cape Elizabeth schools. The plaintiffs claim she was neglected by the district, which failed to provide a psychological evaluation of their daughter under IDEA and did not offer appropriate services.

A “critical element” of the IDEA, they claim, is the “Child Find” stipulation that requires school districts to “promptly refer, evaluate and identify all potentially eligible children with disabilities so they can receive the specialized services to which they are entitled.”

This evaluation is triggered by suspicion, the lawsuit states, and extends to all children “suspected of being a child with a disability … even though they are advancing from grade to grade.”

Mr. and Mrs. Doe claim the School Department repeatedly neglected to fulfill its responsibility to their daughter.

“Despite having knowledge that Jane had a disability and a basis for suspicion that she required special education services, the District failed to meet its IDEA obligations to refer, evaluate and identify her … (and) neglected to provide Plaintiffs with notice of their procedural safeguards until June 9, 2017,” the suit states.

Jane Doe attended school on a consistent basis and performed well during elementary and middle school, but began displaying “aggressive” and “oppositional” behaviors at home when she entered high school in 2014, according to the lawsuit.

In 2015, she began weekly behavioral therapy sessions designed for individuals with borderline personality disorder, after experiencing extreme mood fluctuations and threatening to run away from home and call the police on her parents.

In 10th grade, Jane Doe began refusing to attend school, and once attempted to jump out of her mother’s moving vehicle. Her emotional meltdown, during which she threatened that she would be “better off dead,” required police intervention.

Jane Doe began meetings with social worker Elizabeth Murphy-Lewis at CEHS, but her decline continued. In one instance, she reportedly “became violent and hit her father.” Two months later, she threatened to jump out a second-floor window of the family home.

At that point, a psychological evaluation diagnosed her with adjustment disorder and generalized anxiety disorder. But her “behavioral meltdowns” continued and increased in severity, and Sweetser Crisis Unit accepted Jane Doe for a crisis admission and created a treatment plan for her.

According to the lawsuit, CEHS Principal Jeff Shedd was “well aware” of Jane Doe’s emotional issues and her Sweetser crisis admission.

Shedd did not respond to a request to discuss the claim, but contacted Cape Elizabeth’s new superintendent of schools, Donna Wolfrom, regarding the inquiry. Wolfrom, on July 9, said she could not discuss the case because the district had not yet been served with the lawsuit and she had no prior knowledge of the matter.

In 11th grade, Jane Doe began skipping classes.

“The school nurse and social work staff knew as early as mid-September 2016 that Jane’s high level of anxiety was adversely impacting her school attendance,” the lawsuit states. It goes on to say that, despite suspecting Jane Doe’s emotional state was impacting her educational performance, Murphy-Lewis did not refer her for an IDEA evaluation.

According to the lawsuit, Shedd and other CEHS staff were aware in October 2016 that another CEHS student with a serious anxiety disorder had been unilaterally placed at a residential treatment center in Utah and their family had a “then-pending” complaint against the district for “failing to meet its referral, evaluation and eligibility identification obligations under IDEA.”

On Nov. 10, 2016, without conducting an evaluation, the School Department found Jane Doe eligible as a student with a disability, based on her generalized anxiety disorder.

A plan was developed for her that offered tutoring and some in-school accommodations, such as the ability to see a school nurse or social worker, but “did not address any services the district would offer … in the event that her disability continued to prevent her from attending school … or tutoring sessions.”

The lawsuit claims that after Jane tried to shift her father’s moving car into park during a behavioral episode, Murphy-Lewis on Dec. 2, 2016, emailed Ben Raymond, a special education teacher at CEHS, about making a referral for Jane Doe’s IDEA evaluation.

Mr. and Mrs. Doe signed an evaluation consent four days later, but were never provided with their IDEA notice of procedural safeguards, according to the lawsuit.

The lawsuit also claims the School Department never communicated with the parents about Jane Doe’s pending evaluation, which was supposed to happen within 45 days of referral, nor did it initiate conversations about funding an out-of-state residential treatment, until after Jane Doe was placed at Trails Carolina in Lake Toxaway, North Carolina.

By the end of Jane Doe’s placement at Trails in May 2017, a psychologist had diagnosed her with generalized anxiety disorder and borderline personality disorder and recommended she receive treatment from a residential center.

Jane Doe graduated from the Trails program with high academic standing and was placed at Vista Sage in Sandy, Utah, which specializes in educating young women with anxiety and borderline disorders, on May 18, 2017.

“(Plaintiffs) had no option to return Jane to Cape Elizabeth, as the District still had not finished the evaluation and identification process, and had made no offer of a free appropriate public education,” the lawsuit states.

At a meeting on June 9, 2017, CEHS staff provided IDEA safeguards to the Does for the first time and, over their objection, determined that there was “not … enough information to make an eligibility determination for Jane,” according to the lawsuit.

CEHS found Jane Doe eligible for services under IDEA on Oct. 24, 2017, but she was already on course to complete her graduation requirements for Vista Sage’s academic arm, Stansbury Academy, where she graduated on Jan. 23, 2018.

On Oct. 27, 2017, Mr. and Mrs. Doe filed a request for a due process hearing with the Maine Department of Education, seeking reimbursement for costs associated with Jane Doe’s placement at Trails Carolina and Vista Sage, plus recovery of evaluation and educational consultant costs made necessary by what the lawsuit calls “Cape Elizabeth’s failure to meet its legal obligations under the IDEA.”

On April 6, however, hearing officer Shari Broder ruled that Cape Elizabeth did not violate Jane Doe’s IDEA right to free appropriate public education.

The lawsuit claims Broder’s ruling was incorrect and that Cape Elizabeth did violate Jane Doe’s rights when it failed to refer, evaluate and identify her as IDEA-eligible, evaluate her within 45 days of referral, and provide timely procedural safeguards to Mr. and Mrs. Doe.

The Does are requesting Broder’s ruling be reversed and the family be reimbursed for placement and legal fees, as well as costs for a post-graduation transition program at Vista Counseling in Utah.

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or Follow her on Twitter @JocelynVanSaun.

Cape Elizabeth High School.