Attorneys for parents of autistic child claim district committed 'medical battery'
Belfast — Attorneys for a couple suing Regional School Unit 20 on allegations that school officials provided psychological and behavior modification treatment to their child without their consent are arguing the district and a private consultant committed “medical battery” against their child through those actions.
The plaintiffs, Paul and Barbara Caron, of Stockton Springs, are seeking unspecified damages on behalf of their child from a series of named defendants, most of whom are either currently employed with RSU 20, were formerly employed by the district or acted as a contracted consultant to the special services staff at Stockton Springs Elementary School.
Court records list the defendants as Allen Tomasello, a consultant with the private company Discovering Kids Consultation LLC in Bremen, SSES Principal Jane Austin, RSU 20 Director of Special Services Sharon Goguen, former RSU 20 Superintendent Bruce Mailloux, current RSU 20 Superintendent Brian Carpenter and the school district itself.
The Carons filed the lawsuit at Fifth District Court in Belfast Friday, May 24.
Last month, the attorney representing Tomasello and Discovering Kids Consultation, Humphrey Johnson out of Portland, asked the court to dismiss the Caron's allegations on grounds that the Carons are seeking damages on behalf of themselves as individuals based on allegations of unfavorable conduct toward their child. Johnson further explained that since the alleged damaging conduct did not directly impact the named plaintiffs.
Lawyers for the district, Keriann Roman and Melissa Hewey with Drummond Woodsum in Portland, concurred with Johnson's argument on that issue and additionally stated the couple had failed to seek a due process hearing with the Maine Department of Education. Laws under Maine Unified Special Education Regulations (MUSER) and the Individuals with Disabilities Education Act (IDEA) dictate such a hearing must occur before an aggrieved party can file a civil suit.
But the Caron's attorney, Eric Mehnert out of Bangor, stated in his opposition to the defendants' motion to dismiss the case that his clients are acting appropriately by seeking damages on behalf of their child, who is a minor and is incapacitated by legal definition. Because of that, Mehnert argued, only the child's parents can authorize psychological or behavioral modification treatment.
“The corollary to informed consent is the right to refuse consent. That is, an individual has the right to refuse treatment,” stated Mehnert in his memo dated Aug. 30. “... In the case where an individual is a minor or is incapacitated their guardian can refuse consent.”
Mehnert asserts that not only was the treatment the Carons' child underwent non-consensual, but her parents specifically refused that treatment once they learned the child was being subjected to it at school.
Mehnert also addressed the argument from defendants' attorneys stating the Carons had not exhausted all administrative remedies, specifically the one stating the Carons must seek a due process hearing with the Maine Department of Education before they could file a civil suit in the matter.
Mehnert stated the DOE had conducted an investigation into the matter upon the Carons' request in January 2012, and in March of last year, the department issued a report finding that while the district did not commit a violation of in providing unauthorized treatment, it was in violation of the laws because school official contracted for those services in the absence of an Individual Education Plan team meeting concerning the Carons' child. In addition, Mehnert said contrary to the district's argument, the Caron's filing of the initial complaint with DOE did constitute a request for a due process hearing.
The Carons allege in their claim that school staff at Stockton Springs Elementary School held such a meeting in December 2011, but that they were not invited to attend and plans were made for their child without their knowledge. Mehnert further states minutes from that team meeting do not indicate the parents were present or that they signed off on any treatment plan at that time.
Mehnert argued the district's motion to dismiss on grounds that the issue falls under IDEA because it involves and IEP is faulted for a couple of reasons.
“While it suits the defendants' purpose to urge the court to treat this matter as an IDEA claim, the reality is that neither the facts, nor the law, support such a transmutation of the plaintiff's complaint,” he stated. “This is a complaint alleging a violation of the plaintiff's civil rights by individuals acting under the color of state law. Treatment of either a physical or mental condition without informed consent is medical battery.”
The Carons also allege the actions on the part of the defendants interfered their “liberty interest in the care, custody and education.”
Mehnert made reference to a Supreme Court decision in the case of Troxell Vs. Granville, in which the nation's high court concluded parents' rights to make decisions on behalf of their children is protected under the due process clause of the 14th Amendment.
The lawyers for the district asserted that Family Educational Rights and Privacy Act (FERPA) “was not violated as a matter of law and that Health Insurance Portability and Accountability Act (HIPAA) “does not apply to schools.” Under FERPA school officials are permitted to release personally identifying information to certain parties without parental consent, and a contractor such as Discovering Kids Consultation is one of those parties. Because the law allows for records to be disseminated to a contractor, the attorneys stated Tomasello did not disclose the information contained in the child's records to any other party and was therefore not acting in a negligent way.
Addressing the question of whether the district and/or Tomasello and Discovering Kids Consultation violated the child's rights under (FERPA) and (HIPAA), Mehnert said the distribution of the child's medical and educational records without the parents' consent violated the child's right to be "free from unjustified intrusions on personal security."
He said Congress enacted FERPA and HIPAA to protect confidential information concerning medical and educational histories, but failed to provide any kind of enforcement mechanism for when someone is injured because those laws are violated.
"The civil remedy for holding them responsible is a civil rights action," Mehnert stated.
In this case, Mehnert further stated, IDEA does not apply because the Carons never had the chance to discuss the behavior modification plan at an IEP meeting. Had the plaintiffs participated in the meeting, the Carons would be required to seek remedy under IDEA. He also stated school records carry no indication that the psychological or behavior modification plans were ever included in the child's IEP.
"When confronted, school officials maintained the behavior modification plan was outside the scope of IDEA," stated Mehnert, adding that the Carons claim school officials did not need to consult with parents to provide the treatment because their methodology was their prerogative. "... the defendants cannot have it both ways. They cannot claim the behavior modification plan was not part of an IEP for the purposes of imposing it on [the child] without parental consent and when confronted with their improper behavior suddenly claim that it was part of the IEP in order to try and shield themselves from civil rights liability."
The underlying allegations
Court records state on Aug. 29, 2011, the child started a new school year and began exhibiting signs of anxiety and fatigue during the transition from school to home. A couple days later, Austin told Paul Caron she knew someone with “significant experience” with autistic children — who was later identified in court records as Tomasello — and Austin sought permission to “pick his brain” about end-of-the-day transition option for the child. At that time, Paul Caron agreed to that arrangement.
In mid-September, court documents state Paul Caron spoke with his child's one-on-one educational technician as he dropped the youth off at school, and the ed tech said a meeting had been held and a transition plan was developed. Paul Caron told the ed tech he was displeased that the family was excluded from the meeting, but said he would consider allowing the staff to execute the plan.
After trying to implement the plan, however, Paul Caron told the ed tech it was a failure because it included the use of food as a reward, it allowed school staff to use physical force to get the child to comply and it did not identify contributing factors or the root of the problem nor did it establish goals. The Carons attribute the latter reason for failure to the fact that they were not included in the meeting that led to development of the plan. Court documents further state the Carons told Austin the plan was “unacceptable,” that they expected to be included in future meetings and said they would not authorize any further involvement of the “experienced source” who helped develop the plan.
But the Carons alleged the situation continued to deteriorate as the school year progressed.
“Many afternoons from September to December 2011 when Mr. Caron would pick [his child] up from school [the child] would be sobbing, inconsolable and appear completely overwhelmed,” stated court records.
Paul Caron also stated he was troubled that after leaving school grounds the child would stop crying and say, “I all better.”
Dec. 8, court documents state the Carons met with school staff to discuss their child's Individual Education Plan and at that time no one on the staff informed the Carons of the behavior modification plan or that their child was undergoing psychological treatment. The following day, when Paul Caron was unpacking his child's lunch box, he found a crumpled piece of paper inside that identified Tomasello with Discovering Kids Consultation Services as the individual working with his child and included a report on services Tomasello provided.
Dec. 12, according to court documents, the Carons met with Austin to discuss their concerns about the situation, and Austin told the family she “felt no obligation to disclose the third party consultant involvement” and that she “did things like this all the time.”
At that time the Carons requested all records concerning the behavior modification plans for their child, as well as all the consulting notes. After the Carons received the records Dec. 13, Paul Caron contacted Tomasello, at which time Tomasello stated, according to court documents, that he did not normally include parents in developing psychological treatment plans or about any advice he offers school staff. Paul Caron then asked Tomasello to cease all activities concerning his child, and further stated doing so was illegal without parental consent.
Court documents state that later the same day the Carons met with Austin and Goguen, both of whom “expressed regret” for the misunderstanding. But on Dec. 20, Goguen reportedly told the Carons the school had changed their child's treatment methods to satisfy their concerns but that “we don't have to and our methodology is entirely our prerogative.”
Dec. 22, the Carons allege they contacted Mailloux to express their concerns and to request an investigation into the matter, but the district never got back to them about the outcome of an internal investigation. In January 2012, court records state the Carons sent all records concerning their child to the Maine Department of Education, and March 6, the Carons received the results of the DOE probe into the matter that stated it was a violation of the family's rights for the school to contract for behavioral services without first holding an IEP team meeting, but “that there was no violation in the provision of behavioral services for [the child] even though those services were unauthorized.”
In conclusion, court records state the family is seeking unspecified damages on behalf of their child and alleged the defendants' actions included “assaulting [the child] while [the child] was compelled to attend school; disclosing confidential educational and medical information in violation of her FERPA and HIPAA rights; engaging in an unauthorized psychological treatment plan without parental consent; interfering with the parent-child relationship without due process” all of which violate the child's rights. The Carons further state in court records that their child “suffered severe emotional distress” as a result of those actions.
In allegations specific to Tomasello, the Carons state in court records that he engaged in “offensive physical contact with [the child]” in addition to conducting unauthorized psychological treatments, and that his consulting firm breached its obligation not to inflict emotional distress on the youths it serves.
207-338-3333 ext. 109
Tanya has been a general news reporter in Waldo County since 1997.
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