STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
April 24, 2000
Case #00.051, Falmouth School Department v. Parents
REPRESENTING THE SCHOOL: Amy Tchao, Esq.
REPRESENTING THE PARENTS: Richard L. O’Meara, Esq.
HEARING OFFICER: Lynne A. Williams, Ph.D., J.D.
This hearing was held and the decision written pursuant to Title 20-A, MRSA, 7202 et.
seq., and 20 USC §§1415 et. seq., and accompanying regulations.
This hearing was requested by the Falmouth School Department, on 2/17/2000. The case
involves student. He resides with his parents. Student is eligible for special education
services under the category of multi-handicapped. He is currently a student at the
Aucocisco School in South Portland, Maine, having been unilaterally placed there by his
parents. The Falmouth School Department is currently funding this placement, related
services and transportation pursuant to a hearing order in case #99.162, Parents v.
Falmouth School Department, issued on November 16, 1999.
The parties met in a pre-hearing conference on March 8, 2000, to exchange documents
and lists of witnesses, and to clarify the issues for hearing. The hearing officer also heard
arguments by the School Department in support of their request that the hearing officer
recuse herself from this case.
A series of hearing dates commenced on March 16, 2000 and continued on March 17,
March 23, and April 2, 2000, at the law offices of Drummond Woodsum & MacMahon,
Portland, Maine. The parents entered 99 pages of documents into the record; the school
district entered 398 pages into the record. Seven witnesses testified.
I. Preliminary Statement
This case involves an xx year old male student who is eligible for special education
services under the category of multi-handicapped. He is currently attending school at the
Aucocisco School, a private, special purpose day school for learning disabled students in
South Portland, Maine. His initial placement at Aucocisco was the result of a unilateral
placement decision by his parents.
Prior to the current due process hearing, a hearing was held during September and
October, 1999, to address the issue of the whether the Falmouth School District had been
willing and able to the provide a free, appropriate public education to student and, if not,
whether the Aucocisco School was an appropriate placement for student. In a November
16, 1999 decision, this hearing officer found for the parents on both issues, and ordered
the Falmouth School District to reimburse the family for prior tuition payments and to
begin paying ongoing tuition and related expenses. Student’s counselor was also
directed to prepare a transition plan with a goal of transitioning student back to the
Falmouth School District for the 2000-2001 school year.
The Falmouth School Department is currently paying student’s tuition at Aucocisco, as
well as transportation and related services expenses.
II. Request for Hearing Officer Recusal [sic]
Counsel for the School Department argued, on the record, that this hearing officer had a
potential conflict of interest in this case, and requested that she recuse herself. After
hearing counsel’s arguments alleging such a conflict of interest, this hearing officer
responded that, with regard to this case, she neither has a conflict of interest, nor is she
biased. She therefore declined to recuse herself.
Both parties stipulated that the IEP development date of 2/17/2000 is not in violation of
the order in #99.162.
The School Department noted that the parents had requested that the Department sign a
release stating that any evaluation information collected as part of this due process
hearing and subsequent order would not be entered into evidence as part of the current
appeal of the November 16, 1999 hearing order. The Department requested a ruling that
introduction of any information regarding the Department’s failure to sign this release be
barred from this hearing. The hearing officer so ruled, and advised counsel for the
parents that he would be permitted to make an offer of proof on the record at the
beginning of the hearing. This offer of proof was subsequently entered into the record.
V. Findings of Fact
1. Student's date of birth is dob and he is currently xx years old. He currently attends
the Aucocisco School, in South Portland, Maine. (Exhibit: Due Process Request)
2. On November 16, 1999, this hearing officer issued a decision in Parents v.
Falmouth School Department, #99-062. The hearing order in that case is as
The school shall hold a PET meeting as soon as possible, but no later than December
20, 1999 (or the last day before holiday break).
The school shall contract with an outside facilitator to chair the PET meeting. Prior
to this meeting, Mr. Chatalbash should develop a draft plan and timeline to address
the incremental reintegration of student into the public school system for September,
2000, as discussed above. Mr. Chatalbash shall present his ideas to the PET and
solicit their input. At this meeting, or a subsequent meeting if necessary, an IEP will
be developed, incorporating a detailed transition plan. The PET process shall include
student, to the extent possible, considering his age, disabilities and the preferences of
his parents. The new IEP shall be completed by 2/15/00.
Upon receipt of appropriate documentation from the parents, the District shall
reimburse them for the following expenses for student’s attendance at the Aucocisco
School during the 1998-1999 school year: tuition, mileage and tolls, occupational
therapy, speech and language services, and consulting fees for Dr. Grumpelt and Ms.
The District shall reimburse the parents for these same categories of expenses to the
extent monies have been expended for the 1999-2000 school year. The District shall
pay the balance of tuition for the 1999-2000 school year, as well as reimbursing the
family for mileage and tolls. Expenses for occupational therapy and speech and
language therapy shall be paid by the district up to the date upon which student is able
to begin working with either, or both, the Middle School’s occupational therapist and
speech and language provider.
Proof of compliance with this order shall be submitted to the hearing officer as well
as to the Due Process Coordinator.
This hearing decision is currently being appealed to the Federal Court, District of
Maine, by the Falmouth School Department. (Exhibit: 149-178; Testimony: Elaine
3. On December 2, 1999, according to a December 3, 1999 letter sent to the family,
the father informed Elaine Tomaszewski that he did not want Dr. Sheckart,
Falmouth’s consulting school psychologist, at the upcoming PET meeting,
because he was “hostile to the family.” The father also stated that Dr. Sheckart
had lied under oath at the previous hearing, that he intended to file a complaint
alleging this, and that “it looked like there would be another due process hearing.”
(Exhibit: 147; Testimony: E. Tomaszewski)
4. On December 7, 1999, David Chatalbash prepared a “Draft Transition Plan
Outline,” which laid out a plan for transitioning student into Falmouth Middle
School (FMS) after his two years at Aucocisco. This document included a
timeline for the desensitization of student to FMS, using planned visits to the
school, relaxation techniques and other activities designed to reduce student’s
school anxiety. The plan also indicated the personnel responsible for various
activities. (Exhibit: P90)
5. On December 9, 1999, the family sent a letter to Dr. Sheckart, informing him that
they had told Elaine Tomaszewski that he (Sheckhart) was not to be involved with
student in any way. (Exhibit: 141; Testimony: E. Tomaszewski, Father)
6. A December 21, 1999 PET meeting was held, chaired by Jane Golding, Special
Education Director of the Yarmouth School District. At this time, the Father
expressed concern about a September reentry date to FMS, stating that he felt that
student should begin school at Aucocisco in September, with the transition plan
continuing at that time. Mr. Chatalbash noted that this change could be
entertained, but that he had written the plan based on student reentering public
school in September. The PET continued to discuss the time frame, as well as the
personnel who would work on the transition plan. (Testimony: Father; Exhibit:
7. During the PET, following some discussion of sharing of records and information,
the Father stated that if the situation continues to be adversarial, because of legal
strategic warfare, “we see no option but to get out of the school district, to ask the
school district to allow us to go to another school district.” At another point in the
meeting, the Father stated that the District is just hunting for information to take
to the next hearing (this due process hearing had not yet been requested) to which
Ms. Tomaszewski replied that she did not yet know if she was filing for a hearing.
When asked whether he was planning to file for due process, the Father replied
“not yet.” (Exhibit: 128-129)
8. Mr. Chatalbash’s draft transition plan was discussed at this PET meeting, and was
subsequently attached to the PET minutes and distributed to the team. (Exhibit:
9. The issue of conducting a reevaluation of student was discussed and it was noted
that the triennial evaluation is due April 2000. Dr. Grumpelt commented that the
academic piece has improved significantly. Ms. Melnick suggested that the PET
might want to decide that the psychological piece does not have to be done this
year. Mr. Chatalbash stated that he did not have any particular problem with
Falmouth personnel conducting the evaluations, as long as the scheduling was
coordinated with the transition plan. According to the minutes, however, the
Father did have a problem with using Falmouth evaluators, expressing concern
with the motives, and results, of an evaluator who is being paid by Falmouth. In
addition, he stated that he considers not allowing parents to have input into who
does evaluations as adversarial, not in the spirit of cooperation, and he “didn’t
know how this was going to continue.” The issue of reevaluation was not settled
at this PET, and no consent was given to do any assessments. Ms. Tomaszewski
agreed to meet with the family outside of the PET process, to attempt to resolve
this issue. (Testimony: B. Melnick, D. Chatalbash, Father, E. Tomaszewski;
10. On December 23, 1999, the family sent a letter to the Maine Department of
Professional and Financial Regulation, Office of Licensing and Registration,
alleging that Dr. Sheckart had committed ethical violations by his testimony at the
previous due process hearing. (Exhibit: 393-394)
11. On January 12, 2000, Mr. Chatalbash met with student and communicated to him
that a transition plan had been developed and that the goal was to transition him
back to FMS for September 2000. Over the next few weeks student became
increasingly anxious about the transition plan, obsessing about the September
date. A journal kept by the Mother during this period indicates that student said
he preferred to die rather than go back to FMS. It became increasingly difficult to
get student to attend school, even though his progress regarding school attendance
had been exceptional up to this point. On February 1, 2000, a particularly
difficult day for student, Mr. Chatalbash met with him and informed him that he
(Chatalbash) was taking the September date out of the plan. David Chatalbash
then called Ms. Tomaszewski and informed her likewise. He did not tell either
student or Ms. Tomaszewski that he was discontinuing the plan. Ms.
Tomaszewski responded to Mr. Chatalbash by letter, stating that issues
surrounding the transition plan would be discussed at an upcoming February 11,
2000 PET meeting. (Testimony: D. Chatalbash, E. Tomaszewski, Father; Exhibit:
P1-18, P71-72, 90)
12. A second PET meeting was held on January 27, 2000. Prior to this meeting,
Denise Sullivan, Falmouth Occupational Therapist (OT), and Nancy Entwistle,
Falmouth Speech Therapist (ST), had attempted to obtain updated information
from student’s current OT and ST providers. However, they were told by the
current providers that nothing could be released without a signed release by the
Father. The Father was contacted, but declined to give permission for this release
of information. At this PET meeting, the family stated that there could be no
transfer of information between providers unless the information was presented
directly at a PET meeting, or in the presence of the parents. Consequently,
Sullivan and Entwistle were unable to begin working with student as scheduled in
the transition plan. (Testimony: E. Tomaszewski, Father; Exhibit: 53, 95)
13. A third PET meeting was held on 2/11/00. At this meeting Dr. Randall Grumpelt
distributed a “Needs Report”, based on an evaluation he did the previous week.
This brief report included recommendations that student be placed in an
environment in which he can learn to trust and depend on adults, where he is not
an outcast and where “pullouts” are not used. Reevaluation was discussed some
at this meeting, and the Father requested that Ms. Tomaszewski prepare a list of
“where [student] needs to be reevaluated.” (Exhibit: 71, 72-73)
14. A fourth PET meeting was held on 2/17/2000. At this meeting, an IEP to extend
through June 2000 was developed. The family agreed with the IEP, but did not
consent to a reevaluation being done. In addition, the family objected to the
inclusion of a September 2000 reentry date as a goal in the transition plan. At this
meeting, the Father also stated that the only professionals who should offer
judgments regarding student are those who have worked with him. The School
Department agreed with a suggestion by David Chatalbash that utilizing the same
evaluator to do academic, psychological and cognitive testing would lessen
student’s anxiety level. Ms. Tomaszewski raised the possibility of utilizing Dr.
Daniel Hamilton, from the Yarmouth School District, as an evaluator. The family
stated that they are willing to have academic testing done, although not
psychiatric testing; however, no consent forms were signed. The PET agreed to
involve an independent psychologist to consult on this case, to review student’s
transition plan and other information. The parents requested a “menu” of
providers for their consideration. (Testimony: Father, E. Tomaszewski; Exhibit:
24, 25 27)
15. On March 1, 2000, Nancy Dix, FMS social worker, met with the parents at the
Aucocisco School in order to begin the process of consulting and working on the
transition plan. At that meeting, the parents expressed concerns about
confidentiality and obstacles to developing a relationship based on trust. The
parents requested that Ms. Dix prepare a written plan addressing these issues. On
March 13, 2000, Ms. Dix forwarded a brief letter to the family, describing her
understanding of confidentiality in the social work setting, as well as her
commitment to abide by any decisions reached in this due process hearing,
regarding the reevaluation and the reentry date. On March 24, 2000, the family
forwarded a letter to Ms. Dix, in which they express their concern about Ms.
Dix’s testimony at the March 23, 2000 due process hearing, and state, “we have
concluded that your actions leave us in a situation where we will be unable to
develop a therapeutic relationship with you to benefit our son.” They further
accuse Ms. Dix of breaching confidentiality by testifying at the hearing, cite
various National Association of Social Workers Code of Ethics sections, and
state, “Upon your removal from our son’s case, we will pledge to take no further
action to pursue any complaints we may have concerning the above matters.”
(Testimony: N. Dix, Father; Exhibit: 385-387, 388)
16. On April 4, 2000, Ms. Dix was called to provide rebuttal testimony at this
hearing. She appeared under subpoena and with counsel, who advised her not to
testify. This hearing officer declined to order her to testify when informed that
similar testimony could be provided by Elaine Tomaszewski. Ms. Tomaszewski
testified as to Ms. Dix’s receipt of the family’s 3/24/2000 letter accusing her of
breaches of confidentiality and implying that they would file a complaint against
her if she did not remove herself from student’s case. In addition, Ms.
Tomaszewski testified that Ms. Dix informed her that when the family handed her
the letter, the Father stated that he knew that Ms. Dix’s license was up for renewal
in June. (Testimony: E. Tomaszewski, Father; Exhibit: 385-387, 395)
17. On March 23, 2000, Dr. Daniel Hamilton testified at the due process hearing. Dr.
Hamilton is currently employed by the Yarmouth School District, and had
recently contracted with the Falmouth School Department. Dr. Hamilton is not a
licensed clinical psychologist, but rather a school psychological services provider,
and would be qualified to complete academic, psychological and cognitive
testing. Dr. Hamilton also testified that at times he had worked on cases where a
psychiatric evaluation had been done, for reasons such as assisting in a diagnosis
or in a treatment plan. (Testimony: Dr. D. Hamilton, E. Tomaszewski)
18. On March 30, 2000, the family forwarded a letter to Grant McGiffin,
Superintendent of the Falmouth School Department. In this letter, they alleged
that Ms. Tomaszewski misrepresented the qualifications of Dr. Daniel Hamilton,
by stating that he was a psychologist, both to the family and at a PET meeting.
They also objected to the school’s use of Jane Golding as a “neutral” facilitator at
the last four PET meetings. Ms. Tomaszewski testified at the hearing that it is
common to refer to school psychological services providers as psychologists or
school psychologists, and that Dr. Hamilton’s credentials enable him to perform
the necessary evaluations. (Testimony: E. Tomaszewski, Father; Exhibit: 389-
19. On March 23, 2000, the family did sign consent for a speech and language
assessment and to a classroom observation, both evaluations to be coordinated
through David Chatalbash. (Testimony: E. Tomaszewski; Exhibit: 399-400)
This case has been a difficult one, because of the emotion brought to the testimony, the
hostility between the family and the school district and the obvious subtexts and motives
underlying the events leading up to the hearing and the testimony at the hearing itself.
However, I have made a sincere attempt to not only fully understand the documents and
testimony, but to apply the law in a manner which will not only express the rights and
responsibilities of the parties, but will hopefully give some guidance as to how the
parties, in particular the Father, might dissipate their unhealthy, and often irrational,
antipathy towards each other.
Although the issues as defined during the prehearing conference were fairly narrow,
additional issues emerged during the hearing and in the closing written arguments
submitted by the parties. I want to clearly state here that I stand by my November 16,
1999 decision and believe that it is legally defensible. I feel that since this decision is
being appealed in Federal District Court it would be inappropriate at this time for me to
entertain any thoughts of modifying that decision, as suggested in the district’s closing
written arguments. If that decision is to be modified or overturned it will be by the
federal court. However, given that the remedy in that decision was partially an equitable
one, I retain the right to adjust that remedy if equity so dictates.
If more information is needed to determine the appropriateness of the
transition plan, included as part of the 2/17/2000 IEP, should the Falmouth
School Department be entitled to retain professionals of its choosing to
conduct evaluations of student and to consult with the PET regarding the
content, timeline and implementation of the transition plan? Should the
Falmouth School Department be permitted to reevaluate student as part of
the student’s triennial reevaluation, due in April 2000, and in order to
prepare for the development of student’s 6th grade (2000-2001 school year)
IEP, rather than being forced to rely solely on evaluations and evaluators of
the parent’s choosing?
The current due process request was brought by the district in order to request the hearing
officer to compel the family to consent to various evaluations of student, as input to
possible revisions of the transition plan and as part of his triennial evaluation, due in
April 2000. Since we are now at the point where any evaluations would likely be
considered part of the triennial evaluation, I have combined the two sets of proposed
evaluations under the heading of the triennial reevaluation.
As the IDEA very clearly states, a school district “shall ensure that a reevaluation of each
child with a disability is conducted…at least once every 3 years.” 20 USC § 1414(a)(2).
See also 34 CFR § 300.536(b), MSER 9.11 (“[a ] reevaluation of each student who
receives special education and supportive services shall be conducted at least once every
three years, or more frequently if conditions warrant…”).
There is clearly a need for some updated information about student, particularly what
degree of academic and social-emotional progress he has made since placement at the
Aucocisco School. Likewise, the PET must be given information about student’s present
level of performance in various academic areas so that they can develop an individualized
and appropriate IEP for the 2000-2001 school year, with needed supplementary aids and
The district’s right to perform these evaluations is absolute, rather than negotiable, as
suggested by the family. The family argues that since there is no question that student
continues to be eligible for special education services there is correspondingly no need to
conduct a triennial evaluation. However, the purpose of the triennial evaluation is not
only to determine continuing eligibility, but also to identify the most appropriate category
of eligibility. Eligibility categories do change, particularly in the cases of students who
have had eligibility based on emotional, as well as learning, factors. See MSER § 9.11.
That is this case with this student, whose eligibility is multi-handicapped, due to the
combination of factors (educational, social and emotional) which contribute to his
learning difficulties. In my previous decision, I faulted the district for not addressing the
whole spectrum of this student’s needs. See Parents v. Falmouth School Department,
#99.162, at 15. I will not now continue to fault them for trying to remedy this specific
There is no evidence to support the contention that student will be harmed by these
evaluations. The district has agreed to coordinate all evaluations through David
Chatalbash, so that they can be conducted at appropriate times and by professionals who
have met and interacted with student prior to the testing. In this way, student’s potential
testing anxiety can be minimized.
In addition to having the absolute right to conduct a reevaluation on this student, the
district has a concomitant right to use their own evaluators for that process, as courts have
consistently held. In Andress v. Cleveland Indep. School Dist., 64 F.3d 176 (5th Cir.
1995), the Fifth Circuit held that parents who wanted their child to receive special
education services under IDEA “must allow the school itself to reevaluate the student and
they cannot force the school to rely solely on an independent evaluation.” The Andress
court further stated:
A parent who desires for her child to receive special education must allow the
school district to reevaluate the child using its own personnel; there is no
exception to this rule.
Documents and testimony seem to indicate that the family, particularly the Father, fear
that information gathered at a triennial evaluation might be submitted as evidence in the
pending appeal of my previous decision. However, I find this to be somewhat
hypocritical on the part of the family. I have no doubt in my mind that if my previous
decision had found in favor of the district, rather than the family, the family would have
appealed that decision and they would now be seeking additional evidence to bolster their
appeal. I don’t think I need to remind the family that this is how our system works,
ensuring the right to appeal a hearing decision to federal or state court, and then to further
appeal that decision to any even higher level. See MSER §13.14.
In addition, I have always felt that more, not less, information about a child’s level of
performance, needs, and current emotional and social situation is preferable when making
decisions regarding that child’s educational placement and program. This belief is what
has driven my preliminary orders in this case regarding submission of certain documents.
Barring a violation of confidentiality, I believe that all information must be on the table.
Even more unacceptable is the implication made in documents and in testimony by the
father that if the district had not appealed the previous decision, and had not brought the
current due process request, things would have gone more smoothly. I will not comment
again on the district’s right to appeal any hearing decision, and the family’s right to do
likewise. However, in various statements made by the father, prior to the date of the
current due process request, he implies that he might be on the verge of bringing a
request for due process, or that he believes that due process is inevitable. Again, the
evidence and testimony suggests that the family, particularly the Father, has been
obstructionist from the time the district filed their appeal, and that the family’s rhetoric is
disingenuous at best.
Having heard almost eleven full days of evidence, during the course of this and the
previous hearing, I have significant information about this student and the traumas that he
and his family have suffered. I understand the family’s desire to protect their son and to
help him the best way they can. However, this family is at the point where they are
seeking to be treated differently than other families of special needs children. There is no
question that a district has an absolute right to perform a triennial evaluation and to
utilize their own evaluators when conducting a triennial evaluation, while the parent who
disagrees with those evaluators’ results may request an independent educational
evaluation at the district’s expense. See MSER § 9.19 .
Yet this family has consistently refused to consent to any evaluations, although they did
finally capitulate and sign consent for a classroom observation and a speech and language
evaluation. However, there has been great resistance to utilizing district personnel to
conduct any but the speech and language assessment. To date, the family has rejected a
number of Falmouth personnel who would normally be involved with this student’s
reevaluation. This includes Nancy Dix, FMS Social Worker and Dr. Sheckart,
Falmouth’s consulting school psychologist, neither of whom have ever met student, as
well as others who had worked with student in the past. In addition, the family has not
only expressed their opinion that the involvement of these professionals with their son
would be detrimental to student, but also attacked their ethics and professionalism by
filing (or threatening to file) formal complaints with boards of overseers. There is no
need here to get into the details of the family’s complaints, and it is not up to me to
decide whether the allegations are true or not. However, to use the threat of filing a
complaint as leverage to force a professional to either withdraw from a case, decline to
testify at a hearing or censor their testimony is inappropriate and subverts the whole
purpose of special education due process.
Although the district could have insisted on utilizing Dr. Sheckart to perform the
psycho/educational (achievement, cognitive and psycho/social testing) portion of the
triennial evaluation, they sought to identify another professional, not currently affiliated
with the Falmouth School District, to perform the evaluation. They identified a
professional from a neighboring district, and although there is some ambiguity about
what was communicated to the family and the PET regarding his credentials, the fact of
the matter is that he was legally qualified to perform the psycho-educational portion of
the evaluation. The family again objected to this professional’s involvement with their
son, and subsequently wrote a letter the Falmouth Superintendent, questioning Ms.
Tomazsewski’s handling of this referral.1
The family seems to have forgotten that the district can utilize any qualified professional
that they choose to perform student’s triennial reevaluation and in seeking a professional
not currently affiliated with the Falmouth School District they were voluntarily trying to
accommodate the family.
We come now to the question of what evaluations should be performed as part of this
triennial reevaluation. As I previously noted, the family has agreed to a classroom
observation and a speech and language assessment, so I will not discuss those elements
here, except to encourage Mr. Chatalbash and the district to coordinate the scheduling of
those assessments in a timely manner.
Although there were verbal and documentary statements throughout the hearing that the
family does not object to cognitive, achievement and psychological testing per se, they
have not yet signed a consent form for this testing. It is obvious from the testimony that
the parents want to control the whole testing process, and have veto power over any
evaluators that the district might choose. At the risk of sounding redundant here, I will
repeat that the district can utilize any qualified professional that they choose to perform
student’s triennial reevaluation, and if the family disagrees with the results of that testing
they can request an independent educational evaluation at the district’s expense.
The issue of the psychiatric examination is rather more complicated. The family has
consistently refused consent for this evaluation, arguing that the only reason to perform a
psychiatric evaluation is to address the issue of medication for the student. However, as
I do, however, agree with the family’s objections to the use of Jane Golding, Yarmouth Director of
Special Education, as facilitator of the December, January and February PET meetings. In my November
1999 decision I ordered the district to utilize an independent facilitator to chair the upcoming PET
meetings. By independent I did not mean another special education director. I am bewildered that Ms.
Tomaszewski would fail to understand that, to the family, this choice would appear far from independent.
testimony indicated, there are other reasons for conducting a psychiatric evaluation, such
as clarifying a tentative diagnosis or addressing treatment choices.
However, although student may in the past have been at the point where a psychiatric
examination would be informative and helpful to the PET process, I do not believe he is
at that point now. Through all accounts, student seems to have made exceptional
progress in the social-emotional area, no doubt due to his work with Mr. Chatalbash. I
feel that just as we always seek the least restrictive placement for a student, we should
likewise take a least intrusive approach to testing and do only that testing that will help
the PET determine present levels of performance, create goals and objectives, design a
program and make a placement.
That said, I believe that it is necessary that student’s psychological assessment
(achievement, cognitive and psycho-social testing) be done by a psychologist licensed to
practice in the state of Maine. Although I am well aware that a certified school
psychological examiner is legally able, and usually competent, to complete all of this
testing, I feel that given the significant emotional issues that have impacted this student’s
educational career, extensive psychological testing should be performed. This should
include both self, family and teacher reporting scales, as well as projective testing, and I
believe that this testing would best be completed and interpreted by a professional with a
significant therapeutic, rather than testing, background.
At this point, there must be a consideration of what an appropriate remedy would be if
the family fails to comply with the hearing order in this decision. As the Seventh Circuit
has recently ruled, if a parent’s actions knowingly prevented the school district from
evaluating the student, this failure to cooperate should result in their forfeiting their claim
for reimbursement for the private placement. Patricia P. v. Board of Educ. Of Oak Park,
203 F.3d 462, 469 (7th Cir. 2000). In Patricia P., the parent unilaterally placed her child
in a private school, and then deprived the school district of a reasonable opportunity to
conduct an evaluation of her son. In the case in which we have just heard evidence, the
family has similarly frustrated the attempts of the Falmouth School Department to
conduct a reevaluation of student. Consequently, it is appropriate that a balancing of the
equities would lead this hearing officer to at least modify the reimbursement order issued
in #99.162, following the guidance issued by the First Circuit in Burlington:
[W]hether to order reimbursement, and at what amount, is a question determined
by balancing the equities. Factors that should be taken into account include the
parties’ compliance or noncompliance with state and federal regulations pending
review, the reasonableness of the parties’ positions, and like matters.
Burlington v. Department of Educ. Of Massachusetts, 736 F.2d 773, 802 (1st Cir. 1984)
At best, this family has been unreasonable on the issue of reevaluation. More accurately,
they have been manipulative and intimidating and it appears that the only way to remedy
this behavior, ensure compliance with this order and, most importantly, advance student’s
educational progress and eventual transition back to public school, will be to modify the
previous tuition reimbursement order if compliance is not forthcoming.
Is the February 17, 2000 IEP, which by hearing officer order incorporates a
detailed transition plan calling for student’s reentry to public school in
September 2000, appropriate to meet student’s needs?
Extensive testimony was presented at the hearing regarding the presence of the
September 2000 date in the transition plan, and student’s significant distress when
informed of this date. Although Mr. Chatalbash informed Ms. Tomaszewski that he was
removing the date from the plan, his testimony indicated that he only reassured student
that the focus was not on the date, that the date was not a fixed certainty, and the plan
will proceed as before.
When questioned about the issue of the date, Mr. Chatalbash indicated that while he
would not lie to student, he was comfortable with the language as it stands. The date is a
goal, not something that student should obsess about.
Since I have the luxury of interpreting my own previous decision, I will state here that
both parties in this dispute have misinterpreted my intent when I stated in my November
16, 1999 order that:
Mr. Chatalbash should develop a draft plan and timeline to address the
incremental reintegration of student into the public school system for September,
2000. Parents, at 22.
By this language I did not mean that student should be forced to attend school within the
Falmouth School District, beginning in September 2000, if he was not emotionally ready.
I viewed that date as a goal that I hoped and believed – and still believe – that student,
working together with Mr. Chatalbash, could meet. However, if the family and Mr.
Chatalbash find, as September approaches, that student will likely not be emotionally
ready to return to public school within the Falmouth School District, the burden will be
upon them to present persuasive evidence to the PET that the Falmouth Middle School is
an inappropriate placement for student for September 2000. I am not about to address
placement issues in this decision, since we are months away from September and
placement issues have not yet been discussed by the PET. However, I will state that a
major source of information for the PET will be the triennial reevaluation which
Falmouth is attempting to conduct.
Likewise, I am unwilling to rewrite the transition plan that is currently a part of student’s
IEP. I think the plan is excellent and should go forward, hopefully successfully, with the
September 2000 date as a goal for reentry. Mr. Chatalbash appears to be comfortable
with how and in what detail he discusses the plan with student and I am satisfied that the
student is not being emotionally harmed by the plan as written.
The February 17, 2000 IEP, incorporating a transition plan and a September 2000 goal
for student’s reentry into public school, specifically FMS, is appropriate to meet the
student’s unique needs.
The Falmouth School Department has an absolute right to conduct a triennial
reevaluation of student, using evaluators of their own choosing, and conducting those
specific assessments requested by the PET.
1. The family will sign a Consent to Evaluate form by 5:00 P.M. on Friday,
April 28, 2000. The assessments to be included on the form will be: psychological
testing, cognitive testing and achievement testing. Such evaluations will be
conducted by a qualified clinical psychologist of the school’s own choosing.
2. If the parents have not signed the appropriate consent forms within the time frame
specified, the district shall be permitted to proceed with the above evaluations
without parental consent, pursuant to MSER §9.18.
3. The family shall make the student immediately available for testing by the
school’s evaluators for each of the evaluations listed above, as well as for a
speech and language assessment and a classroom observation. Scheduling of such
testing will be coordinated with David Chatalbash, who shall make every effort to
schedule the evaluations to take place as soon as possible, and in any case not
later than May 22, 2000. Obviously, the Falmouth School Department will be
unable to complete the evaluations by the end of April 2000. However, the school
department will not be in violation of any procedural requirements under the
IDEA as long as the evaluations are completed in a timely manner.
4. The transition plan shall remain in student’s current IEP as written, including the
goal of a September 2000 reentry into public school.
5. The family shall cease blocking the efforts of the Falmouth personnel to share
information with student’s current providers and to receive information from
those providers. Specifically, the Father shall stop utilizing harassment and
intimidation in a misguided attempt to control all aspects of his son’s education.
6. If the family fails to sign consent for the reevaluation testing and to make student
available for testing as scheduled by Mr. Chatalbash, they shall permanently
forfeit any tuition and related services payments and reimbursements for the
period from the date of this hearing order until compliance is met.2
2I realize that this does result in somewhat of a modification of my November 1999 order, but I
am at a loss as to how else to communicate to the Father the absolute necessity of permitting his
son to be reevaluated. In addition, I must note that failure to permit a reevaluation of student in
Spring 2000, could seriously jeopardize student’s continuing eligibility for special education
under MSER §9.11.
7. The Falmouth School Department shall contract with an independent facilitator,
to chair any PET meetings occurring during the year 2000. Such facilitator
should not be a current employee of any school district.3
8. Proof of compliance with this order shall be submitted to the hearing officer as
well as to the Due Process Coordinator.
Lynne A. Williams, Ph.D., J.D. Date
DOCUMENTS SUBMITTED BY THE FALMOUTH SCHOOL DEPARTMENT
1-2 Letter to Mr. Opuda from Attorney Tchao 3/7/2000
3 Letter to Parents from Ms. Tomaszewski 3/6/2000
4-5 Letter to Ms. Tomaszewski from Parents 2/28/2000
6-17 Memo to PET members from Ms. Tomaszewski enclosing letters
And draft transition plan to the 12/21/99 PET meeting minutes 2/22/2000
18-22 Memo to Parent from Ms. Tomaszewski enclosing
Documents to be used at 2/17/2000 PET meeting 2/17/2000
23-59 PET minutes from 2/17/00 PET meeting 2/17/2000
60-61 Letter to Ms. Tomaszewski from Parent re:
2/14/00 letter 2/15/2000
62-63 Letter to Ms. Tomaszewski from Parent re:
64 Letter to Ms. Golding from Parents 2/15/2000
65 Letter to Ms. Williams from Ms. Tomaszewski 2/15/2000
66-67 Letter to Parent from Ms. Tomaszewski and Waiver of
Seven Day Notice 2/14/2000
68 Parental Notice of PET meeting 2/11/2000
69-76 PET minutes of 2/1//00 PET meeting 2/11/2000
3I would suggest that the district contract with either an independent mediator or other
professional experienced in the area of collaborative decision making and conflict resolution.
Two suggestions are: Susanna Liller, Portland, 774-2458, and Jackie Clark, Augusta, 622-1429.
77 Letter to Ms. Tomaszewski from Parents 2/9/2000
78-84 Letter to Commissioner Albanese from Ms. Swerdlow, Chair of
Falmouth School Board 2/7/2000
85-86 Letter to Parent from Ms. Tomaszewski 2/3/2000
87 Parental Notice of PET meeting 2/2/2000
88-89 Letter to Parent from Ms. Tomaszewski 2/2/2000
90 Letter to Mr. Chatalbash from Ms. Tomaszewski 2/1/2000
91 Letter to Parent from Ms. Tomaszewski 1/31/2000
92 Email correspondence from Attorney O’Meara to Attorney Tchao 1/26/2000
93-97 PET minutes from 1/27/00 PET meeting 1/27/2000
98-99 Letter to Ms. Tomaszewski from Parents 1/27/2000
100 Proposed Goals and Objectives from B. Melnick undated
101 Letter to Ms. Tomaszewski from Dr. Grumpelt 1/25/2000
102 Memo to Dr. Grumpelt from Ms. Tomaszewski 1/25/2000
103 Letter to Parent from Ms. Tomaszewski 1/25/2000
104-5 Letter to Ms. Tomaszewski from Parents 1/24/2000
106 Letter to Ms. Tomaszewski from Parents 1/24/2000
107-8 Letter to Superintendent McGiffin from Parents
Re: PET agenda 1/24/2000
109 Parental Notice of PET meeting 1/21/2000
110-13 Letter to Attorney O’Meara from Attorney Tchao 1/21/2000
114-18 Letter to Superintendent McGiffin from Parents 1/21/2000
119 Letter to Parents from Ms. Tomaszewski 1/21/2000
120 Letter to Ms. Tomaszewski from Parent 1/21/2000
121 Letter to Ms. Tomaszewski from Parent 1/20/2000
122 Parental Notice of PET meeting 1/19/2000
123 Letter to Ms. Williams from Ms. Tomaszewski 12/23/1999
124 Letter to Ms. Parks from Ms. Tomaszewski 12/23/1999
125-35 PET minutes of 12/21/99 PET meeting 12/21/1999
136 Letter to Parents from Ms. Tomaszewski 12/21/1999
137 Parental Notice of PET meeting 12/17/1999
138 Letter to Ms. Tomaszewski from Parent 12/14/1999
139-40 Letter to Ms. Williams from Ms. Swerdlow, Chair, Falmouth
School Board 12/10/1999
141 Letter to Dr. Sheckart from Parents 12/9/1999
142-3 Email to Superintendent McGiffin and Ms. Tomaszewski from
144 Parental Notice of PET meeting 12/6/1999
145 Letter to Ms. Williams from Ms. Tomaszewski 12/6/1999
146 Letter to Ms. Parks from Ms. Tomaszewski 12/6/1999
147-8 Letter to Parent from Ms. Tomaszewski 12/3/1999
149-178 Hearing Officer’s Decision (Lynne Williams) in #99.162 11/16/1999
179-221 PET transcript from 2/1//2000 PET meeting 2/11/2000
222-78 PET transcript from 1/27/2000 PET meeting 1/27/2000
279-80 Statement of Clarification by the Parents 1/21/2000
281-82 Consent to Evaluate Form 12/21/1999
283-84 Consent to Evaluate Form 2/17/2000
285-330 School Transcript of 2/17/00 PET meeting 2/17/2000
385-87 Letter to Nancy Dix from Parents 3/24/2000
388 Letter from Nancy Dix to Parents 3/13/2000
389-90 Letter from Parents to Grant McGiffin 3/30/2000
390A Email attachments of above (389-90) letter to Falmouth School
Board members 3/30/2000
391-2 Consent to Evaluate 3/23/2000
393-4 Letter from Parents to the Maine Department
of Professional and Financial Regulation 12/23/1999
395 Subpoena issued to Nancy Dix 3/16/2000
396 Subpoena issued to Nancy Dix 4/3/2000
397 Subpoena issued to Parent 3/31/2000
398 Authorization for Release of Information 4/4/2000
FALMOUTH SCHOOL DEPARTMENT’S WITNESS LIST
Elaine Tomaszewski, Director of Special Services, Falmouth School Department
Jane Golding, PET Facilitator, Director of Special Services, Yarmouth School District
Nancy Dix, Falmouth Middle School Social Worker
Dr. Daniel Hamilton, School Psychological Services Provider, Yarmouth School District’
DOCUMENTS SUBMITTED BY FAMILY
P1-18 Daily Journal for Student 1/12/00 – 2/1/00
P19 Parental Notice – Proposed Change of Program 3/2/2000
P20-1 Proposed Goals and Objectives Prepared by D. Chatalbash 2/28/2000
P22-57 Transcript of 2/17/2000 PET meeting 2/17/2000
P58-67 Draft of IEP and Agenda 2/17/2000
P68 Letter from Parents to Ms. Tomaszewski 2/16/2000
P69 Letter from Parents P70-85
Components Required for IEP, with attachments 2/11/2000
2/8/00 Transition Program Review
2/10/00 Report from Dr. Grumpelt
Aucocisco Goals of Objectives
Report from Tara Jacquet, Speech Language Pathologist
IEP for 11/19/99
Agenda for 2/11/00 PET
P86 Parental Notice – Continuation of 12/21/99 PET (omitting B.
P87-9 Telefax from Ms. Tomaszewski to Parent re:
Agenda for 12/21/99 PET meeting 12/20/1999
P90-2 Transition Plan Outline prepared by David Chatalbash 12/07/1999
P93 Letter from Parents to Superintendent McGiffin and
Ms. Tomaszewski re: PET date 12/03/1999
P94-7 Letter from Attorney O’Meara to Attorney Tchao 12/22/1999
P98-9 Subpoena issued to Parent with copy of check 3/31/2000
PARENTS’ WITNESS LIST
David Chatalbash, LCSW, student’s counselor
Barbara Melnick, Director, Aucocisco School