In RSU 20

District, consultant ask court to dismiss lawsuit over treatment of autistic child

By Tanya Mitchell | Aug 23, 2013
Source: File image

Belfast — Attorneys for Regional School Unit 20 employees and a consultant named in a civil lawsuit alleging mistreatment of an autistic child are asking the court to dismiss the case, according to court documents detailing the suit at Fifth District Court filed earlier this month.

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.

The Carons allege that during the 2011-12 school year, their child was subjected to a behavior modification plan and related psychological treatments based on the recommendations of Tomasello, and that the plan, treatment and Tomasello's involvement with their child was never agreeable to the family. The Carons stated in the court records that they were not included in meetings concerning the development of those plans for their child, despite their requests to be involved in such meetings, and also that the school continued to allow Tomasello to work with their child even after the Carons instructed school administrators and Tomasello to cease all of the previous treatment concerning their child.

Questioning entitlement to relief

Court records dated Aug. 5 show the attorney for Tomasello and his consulting firm Humphrey Johnson, out of Portland, has 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.

“In short, they have not alleged facts on which they could individually be entitled to relief,” stated Johnson.

Johnson offered a similar argument with regard to the Carons' claims that their child suffered past and continuing emotional distress based on the alleged actions of Discovering Kids Consultation. Those claims are unfounded, Johnson said, because in order to be entitled to monetary damages the Carons have to establish that Discovering Kids Consultation owed them a duty and breached it, causing the Carons to suffer harm as a direct result of that breach of duty.

Johnson stated in court records that only the Caron's child was alleged to have suffered harm, not the Carons themselves.

“They have not claimed they were present when those alleged acts involving [the child] supposedly took place. Beyond that, they have not alleged they suffered any personal harm based on any negligent acts by the [Discovering Kids Consultation] defendants,” Johnson stated. “As a result, the plaintiffs... have failed to state a claim of negligent infliction of emotional distress for which relief may be granted to them individually.”

Johnson also stated the case should be dismissed because the Carons “failed to exhaust” the administrative remedies provided under the Maine Unified Special Education Regulations (MUSER), and also did not state claims under Family Educational Rights and Privacy Act (FERPA) or Health Insurance Portability and Accountability Act (HIPAA).

Attorneys for RSU 20 employees, Keriann Roman and Melissa Hewey with Drummond Woodsum in Portland, offered a similar argument in their motion to dismiss the Caron's claims against the school district dated July 18.

In addition to concurring with Johnson's argument that the Caron's failed to seek remedies under MUSER, Roman and Hewey also stated the couple had failed to seek a due process hearing with the Maine Department of Education. Laws under MUSER and the Individuals with Disabilities Education Act (IDEA) dictate such a hearing must occur before an aggrieved party can file a civil suit.

The attorneys for the RSU stated that while the Carons filed a complaint with MDOE and the department conducted an investigation as a result, they never requested a due process hearing.

“Filing a complaint, however, is not equivalent to filing a request for a due process hearing and does not satisfy the exhaustion requirements under MUSER and IDFEA,” stated Roman and Hewey.

The lawyers further asserted that FERPA “was not violated as a matter of law and that 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.

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.

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Tanya Mitchell
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Tanya has been a general news reporter in Waldo County since 1997.

 

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