District lawyers say parents of autistic child must seek DOE hearingPlaintiffs argue alleged actions caused emotional distress to parents
Belfast — In the latest documents filed in the civil suit initiated by a Stockton Springs couple suing Regional School Unit 20 and a consultant over the alleged treatment of their autistic child, lawyers for the district maintain their argument that the plaintiffs missed a necessary step before filing suit against the RSU.
In a memorandum filed with the court Monday, Sept. 10, RSU 20 attorneys Keriann Roman and Melissa Hewey with Drummond Woodsum stated their clients are maintaining the argument that the plaintiffs, Paul and Barbara Caron, cannot rightly sue the district because they have "failed to exhaust their administrative remedies" before the Maine Department of Education.
The documents from the district lawyers also state the courts must disregard portions of the plaintiff's opposition to dismiss the case because the brief contains facts the district maintains were not listed on the original complaint. To that end, Roman and Hewey argued the court should disregard any of those additional statements the Carons' attorney, Eric Mehnert, included in his opposition to the motion to dismiss.
The Carons filed the initial complaint at Fifth District Court in Belfast Friday, May 24. They 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 stated that during the 2011-12 school year, their then 11-year-old child was subjected to psychological and behavior modification treatment plans that they alleged were not only non-consensual, but involved "offensive physical contact" and caused their child unnecessary emotional distress.
In the latest response from RSU 20, Roman and Hewey argued the law requires the Carons to request a due process hearing with the state DOE, and further stated the family's filing of a complaint and the investigation that followed does not constitute such a hearing. 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.
Roman and Hewey stated in their brief that a hearing would have produced a more detailed record of the allegations and any responses from the defendants in this case, information they described as an "invaluable resource for a state or federal court required to adjudicate a subsequent civil action covering the same terrain."
The district's lawyers also disagree with the plaintiff's claims that requirements under IDEA and MUSER do not apply in this instance, which would excuse them from the requirement of requesting a hearing before DOE prior to filing suit. Those statements stem from the Carons' claims that school staff held an Individual Education Plan meeting without notifying them or inviting them to participate in the meeting. The Carons further alleged that school staff subjected their child to psychological and behavior modification treatment plans crafted with the assistance of Tomasello even after the Carons informed the staff and Tomasello they must cease all of those activities involving their child.
"The plaintiffs ignore that they are the ones who have brought suit against the RSU 20 defendants and in support of every count of their complaint, the plaintiffs make allegations specifically concerning the alleged failure of the RSU 20 defendants to provide proper educational programming based upon [the child's] disability," stated Roman and Hewey. "That's exactly what MUSER and IDEA cover."
Roman and Hewey also urged the court to disregard the following statements from the Carons, which the district lawyers argue were not included in the original complaint that the plaintiffs filed last spring:
- That the Carons specifically advised school officials on Sept. 13, 2011, that the school was not to share any of their child's records that were protected either by Family Educational Rights and Privacy Act (FERPA) or Health Insurance Portability and Accountability Act (HIPAA) with any third party;
- That the superintendent of the district did not investigate the complaint, and;
- That on June 28, 2012 the Carons filed a complaint with the Maine Human Rights Commission and received a "right to sue" letter from that body on Feb. 25, 2013.
Plaintiffs: Alleged actions hurt parents, too
In a brief Mehnert filed on behalf of the Carons Sept. 4, Mehnert argued the psychological treatment plan was never discussed during the IEP meeting the Carons specified in their complaint and that Tomasello and Discovering Kids Consultation have denied Tomasello's suggestions for treatment were included in the IEP.
"The Plaintiffs do not dispute that if the psychological treatment was part of [the child's] IEP, they would be required to exhaust administrative remedies," stated Mehnert. "However, the RSU 20 and Mr. Tomasello and [Discovering Kids Consultation Services] have all emphatically previously denied that Mr. Tomasello's treatment was part of [the child's] IEP."
Mehnert also took issue with previous arguments from RSU 20 lawyers questioning why the Carons were suing for damages when it was their child who they allege was directly impacted by the actions of the district and Tomasello. Mehnert pointed to his clients' original complaint, in which the Carons detailed a conversation with Tomasello, where they learned Tomasello does not require parental consent before he provides his services at the request of school officials.
"Essentially Paul and Barbara Caron are being told we will treat your [child] as we see fit, including use of physical restraint and redirection, without consulting you and without regard to your wishes," Mehnert stated. "It stretches one's imagination to find a more outrageous and atrocious statement for a parent. The statement is particularly offensive given the fact that the defendants were dealing with an 11-year-old autistic child with limited verbal skills who was essentially defenseless in the face of the defendants' onslaught. There is nothing which will cause a parent more distress than the fear that someone is doing harm to his or her child and they are powerless to stop it. Mr. Tomasello's actions, and by extension, [Discovering Kids Consultation Services], if not intentionally designed to, certainly did cause Paul and Barbara Caron emotional distress."