Ms. S. v. Regional School Unit 72 , 829 F.3d 95 ( 2016 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 15-1487
    MS. S., individually and
    as parent and legal guardian of B.S., a minor,
    Plaintiff, Appellant,
    v.
    REGIONAL SCHOOL UNIT 72,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. Jon D. Levy, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Lynch and Lipez, Circuit Judges.
    Richard L. O'Meara, with whom Stacey D. Neumann, Caroline J.
    Jova, and Murray, Plumb & Murray were on brief, for appellant.
    Eric R. Herlan, with whom Hannah E. King and Drummond Woodsum
    & MacMahon were on brief, for appellee.
    July 15, 2016
    LIPEZ, Circuit Judge.         This case concerns two separate,
    but ultimately intertwining, narratives.              The first is that of
    appellant,    Ms.   S.,   her   son,    B.S.,   and   his   right   to   a   free
    appropriate    public      education      ("FAPE")     under    the      federal
    Individuals with Disabilities Education Act ("IDEA").               The second
    concerns the implementation of a Maine regulation -- referred to
    herein as the "filing limitation" -- that determines how much time
    a parent, such as Ms. S., has to request a due process hearing
    alleging an IDEA violation.
    In May 2013, Ms. S. filed a request for a due process
    hearing with the Maine Department of Education ("MDOE") concerning
    alleged IDEA violations in all of B.S.'s ninth (2009–2010), tenth
    (2010-2011), eleventh (2011-2012), and twelfth (2012-2013) grade
    years.   The hearing officer dismissed the claims that arose during
    B.S.'s ninth and tenth grades as time barred because the filing
    limitation allowed only claims brought within two years of when
    the parent knew or should have known of a violation.            Ms. S. sought
    judicial review in the district court, arguing that the hearing
    officer should not have dismissed the ninth and tenth grade claims
    because the two-year filing limitation was not promulgated in
    compliance with the Maine Administrative Procedure Act ("Maine
    APA" or "MAPA") and is therefore void and of no legal effect.                 The
    district court determined that the two-year filing limitation was
    valid, Ms. S. did not qualify for an exception to the limitation
    - 2 -
    period, and B.S. received a FAPE in the eleventh and twelfth
    grades.   Ms. S.'s timely appeal followed.
    We conclude that the district court erred in its analysis
    of the validity of the two-year filing limitation, and, further,
    that the record before us is insufficient to determine whether the
    MDOE adequately complied with MAPA procedures when adopting the
    two-year filing limitation. Given that conclusion, we do not reach
    the question of whether an exception to the filing limitation
    applies here.     However, we do find that, consistent with the
    district court's judgment, B.S. received a FAPE in the eleventh
    and twelfth grades.    We therefore vacate and remand in part, and
    affirm in part.
    I. Background
    A. B.S.'s Education
    B.S. received special education services on and off from
    kindergarten through high school to address developmental delays,
    particularly related to speech development.      He was diagnosed with
    autism in high school.     In detailing this history, we recite the
    facts pertinent to Ms. S.'s arguments on appeal.
    In 2009, B.S. enrolled in the ninth grade at Fryeburg
    Academy, a contract high school for students residing in Regional
    School Unit 72 (the "school district").       Before beginning school,
    an   Individualized   Education   Program   ("IEP")   team   composed   of
    school staff, Ms. S., and B.S. met and determined that B.S. did
    - 3 -
    not qualify for an IEP, but the team provided B.S. with a 504 Plan1
    to   address   language    deficits.        In   ninth   grade,   B.S.   also
    participated in Fryeburg Academy's "Transition Program" and was
    provided accommodations such as an allowance for delayed responses
    through his 504 Plan.      By tenth grade, however, B.S. had a normal
    schedule of college-preparatory courses and no longer participated
    in the Transition Program.
    In tenth grade, B.S. began to engage in inappropriate
    use of the Internet and was cyber-bullied by his peers.             His first
    trimester grades included four "F" grades and one "D-" grade.
    After again determining in November 2010 that B.S. did not need
    special education services, the IEP team met next in May 2011 and
    concluded that B.S. was eligible for IDEA services, including
    speech language therapy, classroom accommodations, and sessions at
    the school's Learning Center.
    At the beginning of B.S.'s eleventh grade year, the IEP
    team held another meeting to review the results of B.S.'s summer
    assessments and diagnoses.       Over the summer, B.S. was diagnosed
    with "Autistic Disorder," "Mixed Receptive and Expressive Language
    Disorder," and "Depressive Disorder."            In response, the IEP team
    required   additional     reporting    on   B.S.'s   speech   and   language
    1Even if a school district concludes that a student is not
    eligible for special education services under the IDEA, the
    district may offer some accommodations for a student under Section
    504 of the Rehabilitation Act of 1973. See 
    29 U.S.C. § 794
    .
    - 4 -
    sessions and suggested B.S.'s participation in a planned social
    group that never came to fruition, but otherwise did not change
    B.S.'s IEP.   On a weekly basis, Carie Heath, a speech and language
    services provider, worked with B.S. on his speech and language
    skills, as well as his social skills.         During this time, Heath
    consulted with school staff and Ms. S. concerning B.S., and B.S.
    told Heath that he "felt good" about his progress.        B.S.'s special
    education teacher testified that during the same period, B.S.
    became more involved with student activities and was "starting to
    come out of [his] shell."
    However, in October 2011, B.S. began missing some of his
    classes, and, in November 2011, Ms. S. informed the school that
    she would be keeping B.S. home due to safety concerns resulting
    from bullying.    Shortly thereafter, the IEP team met to address
    these concerns.   In response to Ms. S.'s request that B.S. receive
    group-based social skills instruction, school staff informed her
    that the psychological services provider worked with students
    individually for scheduling reasons, but that B.S. was encouraged
    to engage in group activities and had been doing so through his
    involvement with the school's student union and sports teams.
    B.S.'s special education teacher also reported that B.S. was
    "making   small   advancements,    but    still   needs   prompting   and
    coaxing." Nevertheless, the IEP team agreed that B.S.'s IEP should
    be enhanced to include a one-on-one educational technician escort
    - 5 -
    in and between all classes, to add a behavior plan, and to require
    daily meetings with his school advisor.
    By December of his eleventh grade year, B.S. was evading
    his school escort and had reportedly stolen sneakers from one of
    the school's dormitories.     As a result of the theft, the Fryeburg
    Academy Judicial Board expelled B.S.        At a January 2012 IEP team
    meeting, the team determined that tutorial services were necessary
    pending B.S.'s return to a full-time program. On February 2, 2012,
    the team met again to identify possible alternative schools that
    B.S. might attend, including the REAL School for both disabled and
    nondisabled students who had difficulty in a traditional school
    setting.    The   following   week,   the   REAL   School   offered   B.S.
    admission to its program.      The REAL School had a shortened-day
    program, prompting expressions of concern from Ms. S., but she
    nevertheless agreed to the placement.
    In the months following B.S.'s mid-school-year placement
    at the REAL School, B.S. appeared both to have excelled and to
    have experienced setbacks.       At a March IEP meeting, the team
    declined Ms. S.'s request for a longer school day but added social
    and transition goals to B.S.'s IEP.      The REAL School also prepared
    a Positive Behavior Support Plan for B.S., and his June report
    card reflected grades above 90 in all of his courses, including a
    98 in math and a 95 in English and social studies.      His SAT scores,
    however, were rated in the tenth, seventh, and third percentiles
    - 6 -
    nationally for reading, writing, and math, respectively, and B.S.
    engaged in some questionable behavior involving the taking of
    money.   In spite of these issues, Ms. S. lauded the program and
    its administrators in email exchanges, and she offered such praises
    as: "thanks for being so awesome," and "you guys are good." During
    this time, Heath continued to provide weekly speech and language
    services to B.S.
    In the summer of 2012, the REAL School provided B.S.
    with nine hours of services with a licensed clinical social worker
    and three days of adventure programming.              That same summer,
    licensed psychologist Laura Slap-Shelton concluded that B.S. had
    Autistic Disorder and "is a candidate for therapeutic residential
    placement   for    adolescents   with   Autistic    Disorder   and   other
    developmental disorders."
    At the end of August 2012, B.S.'s IEP team met again to
    review Dr. Slap-Shelton's evaluation.        A written notice from the
    meeting indicates that B.S. "liked attending the REAL School" and
    "would not like to see anything change."           Ms. S. indicated that
    the lengthy commute to and from the REAL School limited B.S.'s
    time to socialize and that she would like to see B.S. placed in a
    residential setting.     The team met again in early September 2012
    and could not reach a consensus concerning Dr. Slap-Shelton's
    evaluation and diagnosis of autism.       The team raised concerns that
    Dr. Slap-Shelton's evaluation "did not conform with either local
    - 7 -
    or state standards for assessments."             The team, however, agreed
    that B.S. should remain for a fifth year of high school for the
    2013–2014 academic year.          After the September 2012 meeting, a
    district-hired psychologist conducted additional testing of B.S.'s
    skills and potential disorders.            The psychologist later testified
    that his role was not to make a diagnosis concerning autism, but
    that he "would be skeptical" of such a diagnosis.                      He also
    testified     that   a    "residential     program   that   requires   24-hours
    supervision doesn't seem to fit" B.S.'s needs, nor did an all-boys
    program.
    In his senior year at the REAL School, B.S. participated
    in service activities, and in an email to Ms. S., the director of
    the REAL School described B.S.'s participation as "stunningly
    active" and reported that "[B.S.] contributed so much leadership
    and kindness to our group."              B.S.'s first quarter report card
    reflected a grade of 98 in English, math, and science, and a grade
    of 95 in social studies.         However, Ms. S. continued to object to
    the school's shortened day and B.S.'s lengthy commute.             On October
    16,   2012,    Ms.   S.   informed   the    school   district   that   she   was
    "rejecting as inappropriate the IEP and placement offered" to B.S.,
    and that she was removing B.S. from the REAL School and placing
    him at the Eagleton School in Massachusetts. Ms. S. also requested
    reimbursement for the costs of placing B.S. at the Eagleton School,
    which is a full-time, all-male residential program.
    - 8 -
    At a November 2012 IEP team meeting, the team noted that
    B.S. "had made excellent progress with developing social skills
    and progressing academically" at the REAL School and that they
    "did       not    agree   with     the    need   for    a   residential    placement."
    Nevertheless, B.S. began attending Eagleton that month.                       In March
    2013, the IEP team met again to discuss B.S.'s programming at
    Eagleton, and the school district's director of special services
    determined that B.S. should still be placed at the REAL School.
    By July 2013, the school's education director reported that B.S.
    had "blossomed socially" at Eagleton and that he would be ready to
    transition back to the REAL School for the fall of his fifth year
    of high school, with the proper social and language supports.
    B.S. completed the Eagleton program in August 2013 and
    returned to the REAL School for the 2013–2014 year.                   From November
    2012 through August 2013, Ms. S. spent $115,782.50 on B.S.'s
    placement at the Eagleton School.2
    B.   The Filing Limitation
    In the fall of 2009, as B.S. was beginning ninth grade
    at Fryeburg Academy, the MDOE was beginning the process to revise
    certain          rules    within    the     Maine      Unified   Special     Education
    Regulation ("MUSER").              The Maine APA governs the process to amend
    2
    In her brief, Ms. S. states that costs totaled $119,147.00.
    However, the magistrate judge identified Ms. S.'s costs as
    $115,782.30.   Ms. S. does not address this discrepancy in her
    briefing.
    - 9 -
    MUSER, and MUSER, a state regulation, controls the process for
    requesting a due process hearing under the IDEA.                     Although the
    IDEA and its corresponding federal regulations provide default
    provisions for this due process hearing procedure, the IDEA permits
    states       to     vary   some   of   these    provisions.        See    
    20 U.S.C. § 1415
    (f)(3)(C).
    Two specific MUSER provisions are relevant here.                The
    first       is    the   filing    limitation,    which,    as   discussed      above,
    specifies the time a parent or school district has to file a
    request for a due process hearing after the date the parent or
    district "knew or should have known about the alleged action that
    forms the basis of the due process hearing request."                     Me. Code R.
    05-071, Ch. 101 ("MUSER") § XVI.13.E.                     MUSER also contains a
    separate         provision   --    referred    to   herein    as   the    "look-back
    term" -- that limits how far back in time a claim may reach once
    a parent knows or should have known of an asserted violation.                    Id.
    § XVI.5.A(2).
    Prior to the MDOE's efforts to amend MUSER in 2009-2010,
    the filing limitation and the look-back term each stood at four
    years.3          Thus, in certain circumstances, a parent might have had
    eight years from the date of an alleged violation to file an IDEA
    due process hearing request: the violation could have taken place
    3
    The federal default is two years for each.                         
    34 C.F.R. §§ 300.507
    (a)(2), 300.511(e).
    - 10 -
    up to four years before the parent knew or should have known about
    the violation (the look-back term), and then, from the point at
    which the parent knew or should have known about the violation,
    the parent had another four years to decide if he or she would
    like to request a due process hearing (the filing limitation).
    In November 2009, the MDOE issued a "Notice of Agency
    Rule-making Proposal," which identified a variety of proposed
    changes to MUSER, including that "the statute of limitations for
    due process hearings will be changed to the federal standard of
    two years."   To accompany the public notice statement, the MDOE
    published at least two versions4 of MUSER that indicated the MDOE's
    proposed changes by striking through old language and underlining
    new proposed language.   Both versions explicitly changed the look-
    4 One version of the proposed regulation is identified as
    "Proposed For Provisional Adoption November 2009" and the other
    version is identified as "Proposed Emergency Refinements Fall
    2009." The former version was not provided in the record but is
    publicly available. We take judicial notice of proposed agency
    rules and the public record materials relating to the rulemaking
    process. See Redfern v. Napolitano, 
    727 F.3d 77
    , 83 n.4 (1st Cir.
    2013) (taking judicial notice of the Transportation Security
    Administration's notice of proposed rulemaking); see also Ams. for
    Prosperity Found. v. Harris, 
    809 F.3d 536
    , 538 n.1 (9th Cir. 2015)
    (per curiam) (taking judicial notice of a proposed state
    regulation).
    Although the pagination differs between the two versions, the
    content of both versions is identical with regard to the look-back
    term and the filing limitation. Compare "Proposed for Provisional
    Adoption," Maine Unified Special Education Regulation Birth to Age
    Twenty, at 161, 171 (proposed Nov. 2009), with "Proposed Emergency
    Refinements," Maine Unified Special Education Regulation Birth to
    Age Twenty, at 160, 170 (proposed Fall 2009).
    - 11 -
    back term from four years to two years.        However, neither version
    indicated any change to the filing limitation, and, instead, left
    the provision untouched at four years.
    In accordance with MAPA procedures, the MDOE scheduled
    a public hearing in December 2009 to discuss the proposed changes.
    In January 2010, after the notice and comment period, the MDOE
    filed the now "provisionally adopted rules" -- which contained a
    proposed two-year look-back term and an unchanged four-year filing
    limitation -- with the Maine Secretary of State and submitted the
    rules to the Maine Legislature for its required review.
    While this standard rulemaking was taking place, the
    MDOE had also taken advantage of an expedited MAPA procedure
    allowing a rule to take effect on a temporary, "emergency" basis.
    The emergency rule contained several of the same changes to MUSER,
    including a change to the "statute of limitations for due process
    hearings."     Consistent with the earlier filings, the emergency
    rule included a two-year look-back term and an unchanged filing
    limitation of four years.       This emergency rule was adopted by the
    agency in January 2010 and then submitted to the Maine Legislature
    for permanent adoption, along with the provisionally adopted rule,
    later that month.      The Legislature's Joint Standing Committee on
    Education    and    Cultural    Affairs   ("Joint   Standing   Committee")
    considered    the   emergency    and   provisionally   adopted   rules   in
    - 12 -
    tandem, conducting a public hearing and multiple work sessions in
    February 2010.
    The Maine Legislature then approved the emergency and
    provisionally adopted rules with some amendments but none that
    altered the filing limitation from four years to two years.5
    Following the MAPA-mandated legislative review, the MDOE adopted
    a final version of MUSER.     Here, for the first time, MUSER listed
    the filing limitation as two years from the date a parent knew or
    should have known about an alleged violation.        The look-back term
    also was listed as two years, as it had been in the proposed,
    emergency, and provisionally adopted versions of the rule.
    C. Procedural History
    In May 2013, Ms. S. filed a request for a due process
    hearing with the MDOE concerning alleged violations in each of
    B.S.'s high school years. The hearing officer dismissed the claims
    that arose during the ninth and tenth grades as barred by the two-
    year filing limitation.      The hearing officer then found that the
    school district did not provide B.S. with a FAPE for the ten-day
    period   following   his   expulsion   from   Fryeburg   Academy   in   his
    eleventh grade year, but B.S. did receive a FAPE during the
    5 The legislative resolve adopting the MDOE's MUSER proposal
    included a provision that appears to amend the statute of
    limitations for a state complaint process, which is outlined in
    MUSER section XVI.4. This complaint process is distinct from the
    due process hearing request procedure at issue here. Compare MUSER
    § XVI.4, with id. § XVI.5, .13.
    - 13 -
    remainder of his eleventh grade year and throughout his twelfth
    grade year.
    Ms. S. sought judicial review in the district court,6
    arguing that the two-year filing limitation is void because it was
    not passed in compliance with the Maine APA, and hence B.S.'s ninth
    and tenth grade claims should be restored.        In connection with her
    claims, Ms. S. sought reimbursement for costs associated with
    B.S.'s   private    placement    at    the   Eagleton      School   "and/or
    compensatory educational services for BS."          The school district
    did not appeal the hearing officer's minor ruling in Ms. S.'s favor
    regarding   the   ten-day   period    following   B.S.'s   expulsion   from
    Fryeburg Academy.      The magistrate judge recommended that the
    district court hold the two-year filing limitation valid because
    the Maine Legislature reviewed and approved the two-year filing
    limitation when it approved subsequent amendments to other parts
    of MUSER in post-2010 rulemakings, including in 2011 and 2012.
    The district court adopted the recommendation on this
    point, and it added that evidence of the Legislature's intent in
    early 2010 supports the conclusion that the Legislature approved
    a two-year filing limitation at the same time that it approved the
    6 Under the IDEA, "[a]ny party aggrieved by the findings and
    decision made under [the 'Impartial due process hearing'
    subsection of the IDEA] . . . shall have the right to bring a civil
    action with respect to the complaint presented . . . in a district
    court of the United States." 
    20 U.S.C. § 1415
    (i)(2)(A).
    - 14 -
    proposed two-year look-back term.          The district court also adopted
    the recommendation that Ms. S. did not qualify for an exception to
    the   limitation     period   and   that   B.S.   received     a   FAPE   in    the
    remainder of his eleventh grade year and throughout his twelfth
    grade year.
    II. Standard of Review
    We review de novo the validity of the two-year filing
    limitation under MAPA.         See Town of Johnston v. Fed. Hous. Fin.
    Agency, 
    765 F.3d 80
    , 83 (1st Cir. 2014).            With regard to Ms. S.'s
    eleventh and twelfth grade IDEA claims, we "review the district
    court's answers to questions of law de novo and its findings of
    fact for clear error."        D.B. ex rel. Elizabeth B. v. Esposito, 
    675 F.3d 26
    , 36 (1st Cir. 2012) (quoting C.G. ex rel. A.S. v. Five
    Town Cmty. Sch. Dist., 
    513 F.3d 279
    , 284 (1st Cir. 2008)).                     When
    faced with mixed questions of law and fact, such as whether an IEP
    is adequate or a student received a FAPE, "our degree of deference
    depends on whether a particular determination is dominated by law
    or fact."    Id. at 36.
    III. The Maine Administrative Procedure Act
    Ms. S. argues that the district court erred in holding
    that the MDOE promulgated the two-year filing limitation rule in
    accordance    with    MAPA.     She    asserts    that   the   MDOE   "made      an
    unauthorized unilateral change to the Filing Limitation Term," and
    that the MDOE's failure to comply with MAPA should render the two-
    - 15 -
    year filing limitation void. As a result, Ms. S. argues, we should
    conclude that the ninth and tenth grade claims were timely brought
    within the four-year filing period.
    MAPA ordinarily requires an agency to promulgate certain
    non-technical, major substantive rules (such as the rules changing
    the filing limitation) via a two-step process.           The first step
    requires the agency to provide public notice of the proposed rule
    and an opportunity for comment.         See 
    Me. Rev. Stat. Ann. tit. 5, § 8053
    .      The second step, which is the primary focus of our
    analysis, requires legislative review of the proposed rule.         See
    
    id.
     § 8072.     If an agency violates MAPA's rulemaking procedure,
    MAPA's "Judicial Review" provision prescribes whether the rule
    nevertheless survives depending on the nature and impact of the
    violation.     See id. § 8058.
    The district court did not address the notice step of
    the rulemaking process.        The court looked to the Legislature's
    intent in 2010 as well as the Legislature's approval of rulemakings
    in 2011 and 2012 to conclude that the two-year filing limitation
    was valid.     As we explain below, the court's assessment of the
    rulemaking's      compliance     with      MAPA's   legislative   review
    requirements was flawed in three respects: (1) it erroneously
    analyzed certain materials regarding the Legislature's intent to
    approve a two-year filing limitation; (2) it erroneously concluded
    that subsequent years' rulemakings cured any prior deficiencies;
    - 16 -
    and (3) it failed to apply a MAPA-provided review standard to
    evaluate the rulemaking missteps.          On the record before us,
    however, we are unable to determine whether these errors undermine
    the court's conclusion that the two-year filing limitation is
    valid.    We therefore remand the case to the district court to be
    decided in accordance with the guidance provided below.
    Regrettably,   we   cannot   explain   our    remand   decision
    without describing the complexities of MAPA.            We thus begin by
    examining MAPA's legal framework.
    A.   MAPA Rulemaking7
    Under MAPA, a state agency seeking to adopt a "major
    substantive rule" may initiate the rulemaking process in two ways:8
    by following the standard procedures prescribed for such rules or
    by seeking temporary adoption of an "emergency rule."             
    Me. Rev. Stat. Ann. tit. 5, §§ 8072
    , 8073.        The two paths may be pursued
    simultaneously, which is what occurred here.            See 
    id.
         Hence,
    because the MDOE proposed the filing limitation as both a major
    7To help the reader navigate the relationship among the
    various provisions of MAPA, we have provided an appendix that
    identifies the relevant sections of the Act and describes briefly
    the subject matter of these sections.
    8
    Major substantive rules include those that, "in the judgment
    of the Legislature, . . . [r]equire the exercise of significant
    agency discretion or interpretation in drafting" or "are
    reasonably expected to result in . . . the loss or significant
    reduction of government benefits or services."     
    Me. Rev. Stat. Ann. tit. 5, § 8071.2
    .B. It is undisputed that the rulemaking at
    issue here involved a major substantive rule.
    - 17 -
    substantive        rule     and    an   emergency         rule,    we   review    the   MAPA
    requirements for each.
    Although major substantive rules are subject to greater
    scrutiny than routine technical rules, the standard rulemaking
    process      begins    with       the    same      notice    and    comment      procedures
    applicable to such routine rules.                      See 
    id.
     §§ 8072, 8052, 8053.
    In addition, "every major substantive rule is also subject to
    legislative review," as described in MAPA section 8072.                                   Id.
    § 8072 (preamble); see also id. § 8071.3.B.                         A major substantive
    "rule has legal effect only after review by the Legislature
    followed by final adoption by the agency."9                        Id. § 8072.1.
    A major substantive rule also may be proposed as an
    "emergency         rule,"    i.e.,      one    that    "is   necessary      to    avoid    an
    immediate threat to public health, safety or general welfare."
    Id. §§ 8054.1, 8073.              If an agency finds that implementation of a
    rule       meets    this    standard,         it    may     "modify"     the     rulemaking
    9
    Under the version of MAPA in place in 2010, a loophole in
    the statutory text may have allowed a rule that was submitted to
    the Legislature to take effect without legislative action, even if
    the rule was submitted outside of the legislative rule acceptance
    period. See Final Report of the State and Local Gov't Comm. Study
    of the Rule-making Process under the Maine Administrative
    Procedure Act, 124th Leg., 2d Sess., at i (Me. 2010); 
    Me. Rev. Stat. Ann. tit. 5, § 8072.7
     (2005).      In 2011, the Legislature
    amended MAPA to clarify that, where an agency submits a
    provisionally adopted rule "during the legislative rule acceptance
    period and the Legislature fails to act," the agency may finally
    adopt the rule.    
    Me. Rev. Stat. Ann. tit. 5, § 8072.11
     (2011)
    (emphasis added).
    - 18 -
    requirements to accelerate "adoption of rules designed to mitigate
    or alleviate the threat found."        
    Id.
     § 8054.1.       Emergency rules,
    however, are not permanent. In certain circumstances, an emergency
    major substantive rule may be effective "for up to 12 months or
    until the Legislature has completed review."10            Id. § 8073.   Thus,
    at the very least,11 the Legislature must review any changes to a
    major substantive rule adopted through the emergency process to
    make such a rule permanent.
    B.   MAPA Judicial Review
    MAPA   section   8058    sets    forth   the    judicial     review
    standards for alleged agency rulemaking violations.12              Me. Rev.
    10
    The emergency major substantive rule at issue here was, in
    fact, slated to be "in effect for one year, except that the
    Legislature may enact legislation to authorize, amend or
    disapprove of the final adoption of these changes." An emergency
    major substantive rule may be effective for up to twelve months if
    it is "adopted . . . after the deadline for submission to the
    Legislature for review."    
    Me. Rev. Stat. Ann. tit. 5, § 8073
    .
    Otherwise, such a rule is effective for only 90 days. See 
    id.
    §§ 8054.3, 8073.
    11
    MAPA does not expressly state that compliance with standard
    notice procedures also is necessary where, as here, a major
    substantive rule change has been implemented on an emergency basis
    for a twelve-month period. See 
    Me. Rev. Stat. Ann. tit. 5, § 8073
    .
    As we note infra, we leave it to the district court to address
    this issue in the first instance.
    12Section 8058.1 affords judicial review to individuals
    seeking "declaratory judgment in the Superior Court." 
    Me. Rev. Stat. Ann. tit. 5, § 8058.1
    .      Subsection 2 states that "[t]he
    failure to seek judicial review of an agency rule in the manner
    provided by subsection 1 shall not preclude judicial review thereof
    in any civil or criminal proceeding." 
    Id.
     § 8058.2. Hence, the
    Maine Supreme Judicial Court, sitting as the Law Court ("Law
    Court"), rejected any reading of subsection 1 that limits judicial
    - 19 -
    Stat. Ann. tit. 5, § 8058.      Curiously, neither party's briefing,
    either to us or the district court, refers to this provision when
    evaluating whether the Maine Legislature reviewed the reduced
    filing    limitation   in   accordance    with   MAPA   in   2010.13   Not
    surprisingly, given this omission, the district court did not refer
    to it in its order.    In light of these omissions, we arguably could
    avoid the question of the appropriate standard for judicial review
    by invoking the waiver doctrine.         See United States v. Zannino,
    
    895 F.2d 1
    , 17 (1st Cir. 1990).      However, the parties have asked
    us to decide whether the two-year filing limitation is valid for
    the purpose of resolving Ms. S.'s IDEA claims.           In our view, it
    would be imprudent to ignore a factor critical to a challenge to
    a rule's adequacy and to ignore the statutory text of MAPA's
    "Judicial Review" provision.     See U.S. Nat'l Bank of Or. v. Indep.
    Ins. Agents of Am., Inc., 
    508 U.S. 439
    , 446 ("[W]hen an issue or
    claim is properly before the court, the court is not limited to
    the particular legal theories advanced by the parties, but rather
    retains the independent power to identify and apply the proper
    review to rule challenges brought in declaratory and enforcement
    actions.   See Conservation Law Found., Inc. v. Dep't of Envtl.
    Prot., 
    823 A.2d 551
    , 558 (Me. 2003).
    13The parties briefly touch on, but do not develop, the issue
    in their discussion of subsequent rulemakings in 2010–2011, 2011–
    2012, and 2012–2013. They do not discuss the different standards
    with respect to the 2009–2010 rulemaking violations primarily at
    issue here.
    - 20 -
    construction of governing law." (quoting Kamen v. Kemper Fin.
    Servs., Inc., 
    500 U.S. 90
    , 99 (1991))).         Moreover, our discussion
    of the proper scope of the court's review under MAPA does not
    result in a merits decision by us as to the validity of the filing
    limitation.     Rather, we raise this issue to properly frame the
    district court's review of the case on remand.
    The applicable MAPA review standard depends upon the
    type of MAPA violation.      Hence, we must classify the failure to
    comply with MAPA's legislative review procedure as a particular
    type of violation in order to determine the appropriate review
    standard for such a violation.        Section 8058 sets the scope of
    judicial review for three types of rulemaking violations: (1) if
    the "rule exceeds the rule-making authority of the agency," (2) if
    the rule "is void under section 8057" of MAPA (discussed below),
    and (3) "any other procedural error."      Me. Rev. Sat. Ann. tit. 5,
    § 8058.1.
    If a court finds either of the first two types of
    violations, the court must hold the rule invalid.          Id.     In a case
    dealing with the third type of MAPA violation -- "any other
    procedural error" -- the court may find the rule invalid only if
    the procedural error is substantial and "of such central relevance
    to the rule that there is a substantial likelihood that the rule
    would   have   been   significantly   changed   if   the   error    had   not
    occurred." Id. The Maine Law Court has described the "substantial
    - 21 -
    likelihood" standard as "a harmless error standard similar to that
    employed in ordinary civil litigation."      Fulkerson v. Comm'r, Me.
    Dep't of Human Servs., 
    628 A.2d 661
    , 663 (Me. 1993).
    The Law Court also concluded that the two different
    review standards -- automatic invalidation and harmless error --
    reflect the Legislature's "inten[t] to narrow the circumstances in
    which procedural error would automatically invalidate a rule."
    
    Id.
     at 663–64.     The court found that the "circumstances in which
    invalidation [of a rule] is automatic principally involve a denial
    of public participation."     
    Id. at 664
    .
    Here, the parties do not dispute the general rulemaking
    authority of the MDOE as to MUSER (which would implicate the first
    type of rulemaking violation), and we thus focus only on the second
    and third types of rulemaking violation.     The second type consists
    of violations that would make a rule "void under section 8057" of
    MAPA.   
    Me. Rev. Stat. Ann. tit. 5, § 8058.1
    .     Section 8057 requires
    compliance with four sections of MAPA: two govern the general
    rulemaking and public notice process (sections 8052 and 8053), one
    governs emergency rulemaking (section 8054), and one governs the
    filing and publication of an adopted rule (section 8056).             
    Id.
    § 8057.1–.2.      Section 8057 states that failure to comply with
    certain parts of these sections renders a rule "void and of no
    legal   effect,   except   that   insubstantial   deviations   from   the
    requirements of section 8053," i.e., the section governing notice,
    - 22 -
    "do not invalidate the rule subsequently adopted."            Id. § 8057.1;
    see also id. § 8057.2.         The judicial review standard in section
    8058 then reinforces this scheme by stating that, if a "court finds
    that a rule . . . is void under section 8057, . . . it shall
    declare the rule invalid." Id. § 8058.1. In sum, a court reviewing
    certain alleged violations of sections 8052, 8053, 8054, or 8056
    must consider whether such a violation occurred, and, absent the
    insubstantial deviation exception for notice, if the court finds
    a violation, it must declare the rule invalid.
    Meanwhile, the third type of violation encompasses all
    "other procedural error[s]."       Id. § 8058.1.     It follows that such
    errors are those that do not constitute an agency transgression of
    its rulemaking authority (i.e., the first type of violation) and
    those that are not addressed in MAPA's compliance section, section
    8057 (i.e., the second type of violation).          See id.
    The legislative review stage of the rulemaking process
    is governed by sections 8071 and 8072 of MAPA, neither of which is
    discussed in MAPA's compliance section.          See id. § 8057.      Section
    8057 also does not address failures to comply with certain parts
    of the MAPA section governing emergency major substantive rules.
    See id. §§ 8057, 8073.         Thus, errors at these stages appear to
    fall   into    the   third,   catch-all   "any   other   procedural   error"
    category and warrant harmless error review under MAPA section 8058.
    Id. § 8058.1.
    - 23 -
    We must, however, address one other consideration in a
    court's review of a rulemaking's compliance with the legislative
    review process. Section 8072 expressly states that a provisionally
    adopted major substantive rule "has legal effect only after review
    by the Legislature followed by final adoption by the agency."         Id.
    § 8072.1.    Standing alone, this language suggests that the utter
    absence of legislative review for a major substantive rule may
    preclude the validity of a finally adopted rule.            Although both
    past and present versions of section 8072 allow for a rule to take
    legal effect without legislative action in certain circumstances,14
    see supra note 9, it is fair to say that the Legislature at least
    must have had the opportunity to review the substance of a finally
    adopted rule in the section 8072 process. Absent such opportunity,
    it may be that a final major substantive rule cannot survive
    judicial scrutiny under section 8058.       How these nuances play out
    in this case is best left to the district court to address in the
    first instance.
    C.   Adoption of the Two-Year Filing Limitation
    The challenge in this case to the validity of the two-
    year filing limitation is not a surprise.         The MDOE's rulemaking
    actions    surrounding   the   overall    MUSER   changes   in   2009-2010
    fostered confusion and concern.     In fact, this rulemaking prompted
    14The school district nowhere contends that the two-year
    filing limitation is valid as a result of this loophole.
    - 24 -
    the passage of a bill in the Maine Legislature to commission a
    report on state agency rulemaking efforts under MAPA.                    See Final
    Report of the State and Local Gov't Comm. Study of the Rule-making
    Process under the Maine Administrative Procedure Act, 124th Leg.,
    2d Sess. (Me. 2010).             The resulting public report discusses
    government confusion concerning the process for permanent adoption
    of an emergency rule and, more significantly, it observes that
    many saw the MDOE changes to MUSER as "a continuation of a process
    in which the department was frustrating the will of the Legislature
    by adopting policies that were not consistent with direction given
    by the Legislature."          Id. at App. B, 4 & n.2.
    With respect to the specific MUSER provisions at issue
    here,    the    phrase      "statute    of     limitations"    is    used   without
    definition by the MDOE in its public notice statement, by the MDOE
    Commissioner in her testimony to the Maine Legislature, by many
    additional witnesses and advocates, and by the Legislature itself.
    Both    the    filing     limitation    and     look-back     term   involve    time
    restrictions, and both periods were originally four years while
    the parallel federal periods are both two years.                        Hence, the
    "statute of limitations" label could be used to describe the filing
    limitation,         the   look-back    term,    or    both.    This    imprecision
    complicated the rulemaking process.
    As    described    above,        the    standard       process    for
    implementing a major substantive rule involves two steps, notice-
    - 25 -
    and-comment and legislative review.              Ms. S. asserts error in both
    steps of the 2009-2010 rulemaking, but does not account for the
    rulemaking's parallel, emergency track.             We briefly address notice
    before moving on to the three errors we detect in the district
    court's discussion of the legislative review step.                 These three
    errors    concern    the    court's    treatment     of   legislative   intent,
    subsequent rulemakings, and MAPA's judicial review standards.
    1.    Notice
    Ms. S. asserts on appeal that the 2010 final adopted
    filing limitation is invalid because the MDOE did not provide the
    public notice or opportunity for comment that is required in the
    rulemaking process.15 Although Ms. S. raised the adequacy of notice
    in the district court,16 that issue received little attention from
    either    the    district   court     or   the   parties.    For   example,   no
    consideration was given to whether the MDOE must provide public
    15In her brief, Ms. S. argues that the MDOE implemented the
    two-year filing limitation in 2010 "[w]ithout [p]ublic [n]otice
    and [c]omment," that the MDOE proposed shortening the "Look-Back
    Term—but not the Filing Limitation Term," and that rule changes
    require "public notice and comment" under section 8052.
    16For example, in Ms. S.'s memorandum objecting to the school
    district's motion to dismiss, Ms. S. argued that the "alteration
    of the Final Adoption version of [MUSER] . . . occurred in the
    absence of any public notice of this change, [or] any public
    comment relating to this change." In a subsequent brief to the
    district court, the school district acknowledged this argument,
    noting that "[a]s Plaintiff has argued from the beginning, she
    continues to assert that the Maine DOE itself adopted the two-year
    limitation period without proper notice, comment or approval by
    the Maine Legislature."
    - 26 -
    notice when making permanent an emergency major substantive rule
    and, if so, whether the MDOE provided adequate notice here.              We
    think   these   questions   are   more   appropriately   handled   by    the
    district court in the first instance.        See Town of Barnstable v.
    O'Connor, 
    786 F.3d 130
    , 141–43 (1st Cir. 2015) (declining to decide
    and remanding a question of law advanced by a party but not decided
    in the district court); see also Singleton v. Wulff, 
    428 U.S. 106
    ,
    121 (1976) ("The matter of what questions may be taken up and
    resolved for the first time on appeal is one left primarily to the
    discretion of the courts of appeals, to be exercised on the facts
    of individual cases.").      Depending on the court's resolution of
    other issues, it may need to consider these notice questions on
    remand.
    2.   Legislative Intent
    As   described   above,   the   rule   proposed   in   2009   and
    approved by the Legislature in 2010 did not include language
    reducing the filing limitation.      Nevertheless, the district court
    concluded that the requisite legislative review occurred, in part,
    because the record supported a finding that the Legislature in
    2010 intended to approve a two-year filing limitation.
    Ms. S. argues that courts may never consider lawmakers'
    intent when evaluating whether a rulemaking complied with MAPA's
    procedural requirements.     We reject the assertion that legislative
    intent is entirely irrelevant to MAPA compliance.            For instance,
    - 27 -
    we can envision a court looking beyond the text of the regulatory
    documents when conducting the harmless error inquiry prescribed by
    MAPA section 8058.    See 
    Me. Rev. Stat. Ann. tit. 5, § 8058.1
    .
    Of   course,   in   some     circumstances,   a   court's
    consideration of legislative intent is improper.      Ordinarily, the
    Law Court does not look beyond language approved by the Legislature
    to determine the Legislature's intent where, as here, the language
    is unambiguous. See State v. Hood, 
    482 A.2d 1268
    , 1270 (Me. 1984).
    The rule approved by the Legislature contained express language
    specifying a filing limitation of "four years."      In addition, the
    legislative resolve approving the rule made no changes to that
    text.17
    Nonetheless, the district court found that reference to
    legislative intent was necessary to avoid "absurd, inconsistent,
    unreasonable or illogical" results.      State v. Niles, 
    585 A.2d 181
    ,
    182 (Me. 1990).      The court concluded that the combination of a
    two-year look-back term and a four-year filing limitation created
    an illogical result because the "scheme would give parents more
    time to take an action within their control . . . yet restrict
    their rights with respect to a factor farther outside of their
    control."
    17 Given the clarity of the text here, we need not confront
    Ms. S.'s suggestion that it is inappropriate to look to legislative
    intent even where the text of an agency rule is ambiguous.
    - 28 -
    We    disagree    that   logic     requires       either   identical
    timelines for both the look-back term and the filing limitation or
    a longer timeline for the look-back term.             While a longer filing
    limitation would not mirror the federal regulatory scheme, it could
    reflect a plan to give parents more time for at least one stage of
    the process.       Indeed, it does not strike us as illogical to give
    parents more time to consult with counsel, consider their options,
    and decide how to proceed once they are aware that a violation
    took place.        The court therefore erred in finding an illogical
    outcome that required the court to examine legislative intent.
    In any event, the evidence that the court relied upon as
    "unequivocal expressions" of the Legislature's intent does not
    provide conclusive support for the court's finding.                In concluding
    that   the   Legislature      intended     to   approve    a    two-year    filing
    limitation,       the   district   court   pointed   to    witness      testimony
    submitted to the Joint Standing Committee, which was reviewing the
    changes to MUSER.       The limited materials presented to the district
    court show that the MDOE Commissioner and multiple other witnesses
    submitted testimony that included vague reference to a change to
    the "statute of limitations."              However, much of the written
    testimony     in    these     materials    also    included      specific     page
    references to the text of the proposed rule, linking the witness's
    position with the exact MUSER provision at issue.                When discussing
    changes to the "statute of limitations," the testimony of the MDOE
    - 29 -
    Commissioner and multiple other witnesses before the Committee
    include page references that correspond solely to the look-back
    term -- and not the filing limitation -- in the November 2009
    "Proposed for Provisional Adoption" version of the rule.                     See
    "Proposed     for    Provisional     Adoption,"     Maine      Unified    Special
    Education Regulation Birth to Age Twenty, at 161, 223 (proposed
    Nov. 2009).    In light of these specific page references, we do not
    interpret this testimony as a clear indication that the Legislature
    reviewed the two-year filing limitation.18
    For additional support for its conclusion, the district
    court     looked    to   the   published   report   of   the    Joint    Standing
    Committee's vote on the MDOE's proposed changes to MUSER.                   Based
    on this report, the court found that, "by a vote of seven to five,
    [the Committee decided that] '[t]he statute of limitations for due
    process hearings is changed to the federal standard of two years'"
    (second alteration in original).           However, a closer examination of
    the report reveals that the Joint Standing Committee voted that a
    rule change to reduce "[t]he statute of limitations for due process
    hearings" to two years ought not to pass, or "ONTP," by a vote of
    18Although some of the testimony uses such language as "filing
    a due process hearing request," such language may indicate that
    the only provision under review was the look-back term. We observe
    that the look-back term appears in MUSER under the heading "Filing
    a Due Process Hearing Request," MUSER § XVI.5, while the filing
    limitation falls under the separate "Impartial Due Process
    Hearing" section of the rule, MUSER § XVI.13.
    - 30 -
    seven to five -- as opposed to the district court's assertion that
    the Committee approved the change by such a vote.19       Although
    subsequent committee vote tallies, of which we take judicial
    notice, see Territory of Alaska v. Am. Can Co., 
    358 U.S. 224
    , 226–
    27 (1959), suggest that the Joint Standing Committee may have
    reconsidered the measure, the precise subject of those subsequent
    votes remains unclear.    See Joint Standing Comm. on Educ. and
    Cultural Affairs, 124th Leg., Committee Voting Tally Sheets, L.D.
    1741-4g (Me. Feb. 25, 2010).     Accordingly, to the extent the
    district court refers to these rulemaking materials on remand, it
    will need to reevaluate their content.
    3.   Subsequent Rulemakings
    The district court also offered a ratification rationale
    for finding the rule valid notwithstanding the legislative review
    issues of the original 2009-2010 rulemaking.   The court, agreeing
    with the magistrate judge, concluded that the Legislature effected
    a post hoc ratification of the two-year period when it reviewed
    19Understandably, the district court may have been led astray
    by the phrasing in the report, which noted: "The statute of
    limitations for due process hearings is changed to the federal
    standard of two years" (emphasis added). However, the report's
    use of this affirmative "is changed" language may be attributable
    to the fact that the rule had already taken effect on a temporary
    emergency basis, as discussed above, when the Joint Standing
    Committee was voting on its permanent implementation.
    - 31 -
    changes    to     other    parts    of     MUSER    in   subsequent     rulemaking
    proceedings in 2011 and 2012.
    However, consistent with its review of the original
    rulemaking, the district court did not consider the issue of notice
    when it examined the subsequent rulemakings.                  It again reviewed
    only whether the Legislature had approved the proposed rules. Yet,
    as both parties recognize, the subsequent proceedings were subject
    to the MAPA requirement of notice and an opportunity for public
    comment.       See 
    Me. Rev. Stat. Ann. tit. 5, §§ 8052
    , 8053.                    The
    record provides no indication that the MDOE gave notice to the
    public of any change to the length of the filing limitation period
    in these subsequent, standard rulemakings.
    The school district argues that the failure to alert the
    public    to    this    change     in   the   subsequent     rulemakings    is    an
    "insubstantial         deviation[s]"      from     MAPA's   notice    requirements
    because the text of the proposed rules in those later years
    included the two-year filing limitation.                    See 
    id.
     § 8057.1.
    However, if merely including language in the body of a rule without
    identifying it as a change were sufficient to provide notice,
    MAPA's notice requirement would have no meaning.                An agency could
    simply bury new language in a previously existing rule, putting an
    unreasonable burden on the public to unearth the language and
    identify it as a change.           We reject this approach as inconsistent
    with the Law Court's view of the importance of notice and "public
    - 32 -
    participation" in the rulemaking process.          See Fulkerson, 
    628 A.2d at 664
    .     Therefore, given the lack of notice in the subsequent
    rulemakings, the district court erred in finding that these later
    proceedings     cured   the     defects     in   the   original   2009-2010
    rulemaking. See 
    Me. Rev. Stat. Ann. tit. 5, §§ 8052
    , 8053, 8057.1,
    8058.1.
    4. Judicial Review
    As discussed above, the review that a court applies to
    a particular type of MAPA violation may dictate whether, in spite
    of the violation, the rule has legal effect.           The district court's
    decision did not reflect consideration of either the different
    judicial review standards set forth in section 8058 or the fact
    that section 8072 gives legal effect to a rule only if, at a
    minimum, the Legislature had the opportunity to review it.              See
    
    Me. Rev. Stat. Ann. tit. 5, §§ 8058.1
    , 8072.1.              Therefore, the
    district court erred when it did not apply a MAPA-provided review
    standard.
    D. MAPA Summary and Guidance on Remand
    In sum, we conclude that the district court did not
    properly evaluate the validity of the two-year filing limitation
    under MAPA's prescribed rulemaking procedures.           The district court
    did not address the notice issue raised by Ms. S. as to the original
    2009–2010 rulemaking.         In addition, it made three errors when
    evaluating    the   2009-2010    rulemaking's     compliance   with   MAPA's
    - 33 -
    legislative      review    requirements:     (1)    it   erroneously       analyzed
    certain   materials       regarding    the   Legislature's       intent;    (2)    it
    concluded   that     subsequent       rulemakings    cured      defects     in    the
    original 2009–2010 rulemaking; and (3) it did not apply a MAPA-
    provided review standard to legislative-review-stage violations of
    the rulemaking process.
    We recognize that, despite these errors, the court's
    ultimate conclusion -- that the two-year filing limitation is
    valid -- could be correct.         However, we are unable to affirm that
    judgment in light of the district court's incomplete analysis, the
    parties' deficient briefing, and the murky record before us.                       We
    thus remand the case to the district court to reevaluate the
    validity of the two-year filing limitation.
    On    remand,    the   district    court's        resolution    of    the
    validity of the two-year filing limitation rule should apply the
    MAPA-provided     judicial     review    framework,      in    keeping    with    the
    guidance provided herein.          The public record for the 2009-2010
    rulemaking process encompasses substantial materials far beyond
    those initially presented to the district court.                   The court may
    order the parties to develop the record and provide further
    briefing as necessary to make its determinations.                We do not opine
    on whether materials beyond the 2009-2010 MAPA processes may be
    germane to the section 8058 analysis.               We also do not opine on
    whether a certified question for the Law Court about the interplay
    - 34 -
    between MAPA's various provisions may be appropriate once the
    record is developed.
    IV. The Specific Misrepresentation Exception
    The IDEA, and, in turn, MUSER, contain two exceptions to
    time restrictions imposed by the filing limitation.               See 
    20 U.S.C. § 1415
    (f)(3)(D)(i)–(ii); MUSER § XVI.13.F(1)–(2).                Relevant here
    is the "specific misrepresentation" exception, which sets aside
    the filing limitation "if the parent was prevented from filing a
    due   process     hearing     request    due     to     .   .    .   [s]pecific
    misrepresentations by the [school district] that it had resolved
    the problem forming the basis of the due process hearing request."20
    MUSER § XVI.13.F–.F(1).        Ms. S. argues that even if the filing
    limitation      stands   at     two     years,        the   IDEA's     specific
    misrepresentation exception applies, and, as a result, the ninth
    and tenth grade claims are not time barred.                     Because we are
    remanding the case to the district court to determine the validity
    of the two-year filing limitation, we do not reach this issue.
    V. IDEA Claims
    Setting aside the ninth and tenth grade claims, we focus
    on Ms. S.'s undisputedly timely claims.               Ms. S. argues that the
    school district did not provide B.S. with a FAPE in his eleventh
    20The second exception sets aside the filing limitation's
    time restriction if the school district withheld information that
    it was required to provide to the parent. MUSER § XVI.13.F(2).
    - 35 -
    and twelfth grade years.       Under the IDEA, each state receiving
    federal IDEA funding must provide a FAPE "to all children with
    disabilities . . . between the ages of 3 and 21."                
    20 U.S.C. § 1412
    (a)(1)(A).       To ensure that this takes place, a school
    district "must take steps to identify children who may qualify as
    disabled,   evaluate   each   such   child    to   determine   his   or   her
    eligibility for statutory benefits, and develop a customized IEP
    designed to ensure that the child receives a level of educational
    benefits commensurate with a FAPE."          Five Town, 
    513 F.3d at 285
    .
    The IDEA also mandates that, "[t]o the maximum extent appropriate,"
    a school district's special education accommodations should take
    place in the "least restrictive environment" available.          
    20 U.S.C. § 1412
    (a)(5)–(a)(5)(A).
    The IEP is "the centerpiece of the [IDEA]'s education
    delivery system for disabled children."            Honig v. Doe, 
    484 U.S. 305
    , 311 (1988).       A customized IEP "must include, 'at a bare
    minimum, the child's present level of educational attainment, the
    short- and long-term goals for his or her education, objective
    criteria with which to measure progress toward those goals, and
    the specific services to be offered.'"          Esposito, 
    675 F.3d at 34
    (quoting Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 
    518 F.3d 18
    , 23 (1st Cir. 2008)).      An IEP therefore "must target 'all of a
    child's special needs,'" including a child's social limitations.
    Lenn v. Portland Sch. Comm., 
    998 F.2d 1083
    , 1089 (1st Cir. 1993)
    - 36 -
    (quoting Town of Burlington v. Dep't of Educ., 
    736 F.2d 773
    , 788
    (1st Cir. 1984)).   However, "[t]he IDEA does not promise perfect
    solutions," id. at 1086, and "the obligation to devise a custom-
    tailored IEP does not imply that a disabled child is entitled to
    the maximum educational benefit possible," Esposito, 
    675 F.3d at 34
     (quoting Lessard, 
    518 F.3d at 23
    ). We therefore review an IEP's
    compliance with the IDEA based on whether the IEP is "reasonably
    calculated to confer a meaningful educational benefit."   Esposito,
    
    675 F.3d at 34
    .
    A.   Eleventh Grade (2011–2012)
    Ms. S. argues that, in eleventh grade, B.S. did not
    receive adequate social skills instruction and that his mid-year
    placement in the REAL School "was not reasonably calculated to
    provide him with meaningful benefit."
    The district court21 concluded that the hearing officer
    adequately addressed the social skills instruction issue and that
    the school district was not required "to provide a student with
    his parent's first choice for services."   We agree.   In accordance
    with his IEP, B.S. met weekly with speech pathologist Heath to
    work on his speech, language, and social skills. During this time,
    Heath consulted with school staff and Ms. S. concerning B.S., and
    21
    The district court adopted in full the magistrate judge's
    recommendation concerning the eleventh and twelfth grade claims.
    We therefore refer to the magistrate judge's recommendations on
    these issues as the opinion of the "district court."
    - 37 -
    B.S. told her that he "felt good" about his progress.              B.S.'s
    special education teacher testified that during the same period,
    B.S. became more involved with student activities and was "starting
    to come out of [his] shell."         That fall, when Ms. S. kept B.S.
    home due to safety concerns resulting from bullying, the IEP team
    met to address those concerns. Although the school did not satisfy
    Ms. S.'s request to provide B.S. group-based social instruction
    because of scheduling difficulties, B.S. was encouraged to engage
    in group activities and was reported to have been doing so through
    his involvement with the school's student union and sports teams.
    The IEP team also enhanced B.S.'s IEP to include a one-on-one
    educational technician escort in between all classes, to add a
    behavior plan, and to require daily meetings with his school
    advisor.    Although the plan may not have met the appellant's
    specific requests concerning group-based instruction, the IEP team
    put   in   place   measures   to   address   B.S.'s   social   needs   and
    limitations.   The district court did not err in concluding that no
    violation occurred.22
    22
    Ms. S. also argues that the district court held her to an
    improper standard of proof when it stated that, "[i]n the absence
    of any evidence that direct 'social skills instruction[]' . . .
    would necessarily have significantly reduced BS's elopements or
    significantly improved his relationships with his peers during his
    first two months at a new school, the plaintiff takes nothing by
    this argument." (second alteration in original). We do not read
    this statement to establish a new burden of proof; instead, we
    view it as an articulation of the fact that a particular service
    - 38 -
    Ms. S. also argues that the school district's placement
    of B.S. in the REAL School following his expulsion from Fryeburg
    Academy did not meaningfully benefit B.S.        Ms. S. posits that the
    REAL School did not provide B.S. with the appropriate programming
    given the school's shortened day and lack of an on-staff speech
    pathologist.     The district court found no evidence to support
    Ms. S.'s conclusion that the REAL School was an improper placement
    for B.S.   We again find no error in this determination.          Under
    state regulations, an "abbreviated school day" is "any day that a
    child . . . attends school or receives educational services for
    less time than age/grade peers without disabilities within the
    same school and/or school program." MUSER § II.1 (emphasis added).
    B.S.'s day was no shorter than his peers at the REAL School.         In
    fact,   school   officials   testified    that     the   REAL   School's
    abbreviated day works out to the same amount of instructional time
    as B.S. would have received at a traditional public high school
    where students have significant amounts of "holding time," such as
    homeroom and time between classes.       Furthermore, while the REAL
    School did not have a speech pathologist on staff, Heath continued
    to provide speech therapy to B.S. on a weekly basis while he
    attended the REAL School.    Thus, the district court did not err
    was no more likely to address B.S.'s social skills issues than the
    ones already proposed and implemented by the school district.
    - 39 -
    when it determined that B.S. received a FAPE in the eleventh grade,
    and we affirm this judgment.
    B.    Twelfth Grade (2012-2013)
    Ms. S. asserts the same claims concerning the REAL School
    in B.S.'s twelfth grade year as she did regarding his placement
    there in his eleventh grade year.                 The district court ruled that
    B.S. again received a FAPE in twelfth grade.                     For the reasons
    discussed above, we affirm this judgment.
    VI. Conclusion
    For    the    foregoing      reasons,   we    vacate    the    district
    court's judgment that the two-year filing limitation is valid under
    the   Maine    APA    and    remand   to    the    district   court    for   further
    proceedings consistent with this opinion.                  We affirm the district
    court's judgment that B.S. received a FAPE in the eleventh and
    twelfth grades.        Each party shall bear its own costs.
    So ordered.
    --Concurring Opinion Follows--
    - 40 -
    LYNCH, Circuit Judge, concurring.            With the greatest
    respect for my colleagues, I write separately to express my views.
    I fully join the holding affirming that B.S. received a
    free appropriate public education ("FAPE") under the Individuals
    with Disabilities Education Act ("IDEA"), for his eleventh and
    twelfth grade years.
    The issue of the appropriate limitation period for the
    filing of the plaintiff's claim, particularly as to the ninth and
    tenth grade years, is controlled by a federal statute, 
    20 U.S.C. § 1415
    (f)(3)(C), which receives too little attention from the
    parties.   That federal statute states that a parent has two years
    to file a complaint from when the parent "knew or should have known
    about the alleged action that forms the basis of the complaint, or
    if the State has an explicit time limitation for requesting such
    a hearing under this subchapter, in such time as the State law
    allows."   Id.; see also 
    34 C.F.R. § 300.511
    (e).            As I understand
    the provision, a state's limitation period is adopted if and only
    if the state has an "explicit time limitation," otherwise the
    federal default period of two years is used.
    The parties have assumed that Maine has an "explicit
    time limitation" in its state regulation, Me. Code R. 05-071, Ch.
    101   ("MUSER")   §   XVI.13.E,   which   on   its   face   provides   for   a
    limitation period of two years.            Ms. S. assumes that she is
    nonetheless free to attack the validity of this state regulation
    - 41 -
    using the Maine Administrative Procedure Act ("MAPA"), as a matter
    of application of the governing federal IDEA statute.                    Based on
    that assumption, she argues that the state regulation is invalid
    under MAPA.    The school system responds by defending the state
    regulation's validity in like terms.
    It     is    not   clear    that    the   intent    of    
    20 U.S.C. § 1415
    (f)(3)(C) is to permit a federal court to decide state
    administrative        procedure   questions     about   the     validity       of
    explicitly stated state administrative provisions.                 It could be
    that we are to take the state law on its face.          Then again, it may
    be that those uncertainties about the time period under MAPA mean
    that Maine has not met the "explicit time limitation" requirement
    of the federal statute.       If so, we would find the two-year federal
    limitation period applies for the ninth and tenth grade years.                 In
    either of the above-described scenarios, we would find that the
    governing limitation period is two years, that the plaintiff's
    claims as to the ninth and tenth grade years are not timely, and
    that judgment should be entered against her on those claims.
    On the other hand, there may be reasons to think that
    the state law validity issue should be resolved.             Still, that does
    not answer the question of who should resolve the issue or say
    that the federal court should resolve it. The parties have utterly
    failed to adequately brief the federal issues and have encouraged
    the court to enter the state law briar patch.            My colleagues are
    - 42 -
    not to be faulted for walking down the path that the parties laid
    out for them.
    Nevertheless,   as   to   answering   the   question   of   the
    validity of the limitation period under Maine law, my view is that
    it is not the business of a federal court to tell Maine how to
    interpret its own administrative law.      Doctrines of federalism,
    comity, and abstention all counsel against such incursions.           See
    The Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate
    Info. Servs., 
    608 F.3d 110
    , 119 (1st Cir. 2010) ("There are . . .
    strong federalism interests that are furthered by providing the
    state courts with the opportunity to decide on underlying unsettled
    questions of state law."), certified question answered, 
    946 N.E.2d 665
     (Mass. 2011).
    To the extent that the state regulation validity issue
    governs the timeliness analysis, I would have preferred to send
    this matter to the Maine Supreme Judicial Court for resolution or
    to have abstained and let the state courts resolve this matter.         I
    agree that the question is important to the administration of IDEA
    programs and services in Maine, and that is exactly why the Maine
    Supreme Judicial Court, and not this court, should decide the state
    law question.   See Fortin v. Titcomb, 
    671 F.3d 63
    , 71 (1st Cir.
    2012) (certifying where "the choice between these two paths [was]
    a matter of state policy best left to the state's courts"),
    certified question answered, 
    60 A.3d 765
     (Me. 2013).       In my view,
    - 43 -
    the conditions for certification have been met.   See Darney v.
    Dragon Prods. Co., LLC, 
    994 A.2d 804
    , 806 (Me. 2010).   And here,
    we would benefit from certifying a question to the Maine Supreme
    Judicial Court, as we have in the past. See, e.g., Fortin, 671
    F.3d at 64.23
    23   As the majority notes, the district court may employ a
    method to have the state courts address the state law questions
    when it deems the record sufficiently developed.
    I also think that on remand the FAPE question may be
    answered as to the ninth and tenth grade years before addressing
    the question about whether the claim was timely made as a matter
    of Maine law. That is, if the district court finds that FAPE was
    provided as to those years, that would end the lawsuit.
    - 44 -
    APPENDIX
    This appendix lists the above-referenced provisions of
    the Maine Administrative Procedure Act, the formal title of each
    provision, and a brief description of each provision's relevant
    content.
    Section 8052.        "Rulemaking" - Sets forth the general
    process    for   agency      adoption    of     a   rule,    which      includes   the
    requirements that an agency provide notice, hold a public hearing
    in certain circumstances, and adopt a written statement addressing
    submitted comments.       See 
    Me. Rev. Stat. Ann. tit. 5, § 8052
    .
    Section 8053.        "Notice" - Sets forth specific notice
    requirements, including necessary content and prescribed methods
    of publication.       See 
    id.
     § 8053.
    Section 8054.       "Emergency rulemaking" - Sets forth the
    process for agency adoption of an emergency rule, as opposed to an
    emergency   major     substantive       rule.       See     id.   §   8054.    For   a
    description      of    the     provision        concerning        emergency     major
    substantive rulemaking, see infra section 8073.
    Section 8056.       "Filing and publication" - Sets forth the
    agency requirements for submitting an adopted rule to the Maine
    Secretary of State for approval and publication.                      See id. § 8056.
    Section 8057.        "Compliance" - Explains that rules not
    adopted in accordance with certain parts of sections 8052 and 8056,
    or with sections 8053 and 8054 are "void and of no legal effect,
    - 45 -
    except that insubstantial deviations from the requirements of
    section 8053 do not invalidate the rule."   Id. § 8057.1–.2.
    Section 8058.    "Judicial review of rules." - Sets forth
    the review standards for different types of MAPA violations,
    requiring automatic invalidation if the rule exceeds the agency's
    rulemaking authority or if the rule is void under section 8057,
    and requiring the courts to apply a harmless error review to "any
    other procedural error."   Id. § 8058.1.
    Section 8071.     "Legislative review of certain agency
    rules" - Defines "major substantive rules" and subjects such rules
    to legislative review in accordance with the procedures set forth
    in section 8072.   See id. § 8071.
    Section 8072.    "Legislative review of major substantive
    rules" - Sets forth the procedures for legislative review of major
    substantive rules and mandates that such rules have "legal effect
    only after review by the Legislature followed by final adoption by
    the agency."   Id. § 8072.1.
    Section 8073.     "Emergency major substantive rules" -
    Sets forth the process for agency adoption of an emergency major
    substantive rule, and allows, in some circumstances, for such rules
    to "be effective for up to 12 months or until the Legislature has
    completed review."   Id. § 8073.
    - 46 -