Complaint Investigation Report

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					                                  Complaint Investigation Report
                                 Parent v. Manchester (Union #42)
                                         Date: 11/22/2006

Complaint:                     #07.009C

Complaint Investigators:       Susan Lockery & Sheila Mayberry
Date of Appointment:           August 1, 2006

I. Identifying Information

Complainant:                  Mother

Respondent:                   Richard Abramson,

Special Education Director: Lewis Collins

Student:                      Student
                              DOB: xx/xx/xxxx

II. Summary of Complaint Investigation Activities

        The Maine Department of Education received this complaint on August 1, 2006. The
complaint investigators were appointed on August 1, 2006. The complaint investigators received
225 pages of documents from the mother and 192 pages of documents from the school district.
Interviews were conducted with the following people: Dr. Bruce Chemelski, Consulting School
Psychologist; Mary Callan, Principal of Maranacook Community Middle School (MCMS); Lewis
Collins, Special Education Director of School Union #42 (District); Susan Hollinger, School
Psychological Services Provider; Susan Dunn, Special Educator; Linda Kittredge, Educational
Technician; Nancy Provost, Educational Technician; Frances Flanders, Educational Technician;
the Student's mother; the Student’s stepfather; Jennifer Raymond, Case Manager, Richardson
Hollow Mental Health Services (RHMHS); Lou McIntosh, Advocate, Merrywing Corporation;
Mark Hammond, Speech-Language Pathologist; and Paula Phillips, former Educational
Technician. The complaint investigators determined that a complaint investigation meeting was
not necessary.

III. Preliminary Statement

       The Student is xx years old and attends xx grade at MCMS in Readfield, Maine. He
receives special education services under the exceptionality of Multiple Disabilities. He has been
diagnosed with autism and mental retardation (MR). This complaint was filed by the Student's
mother, alleging that the District violated the Maine Special Education Regulations (MSER) in a
number of ways, including failing to provide appropriate programming and failing to follow an
appropriate behavior intervention plan (BIP).
Case #07.009C

        Due to the extreme difficulty in reaching interviewees, caused by both the holiday weekend
and the beginning of the school year, an extension of the sixty-day time limit was necessary.

IV. Allegations

1. Failure to provide trained educational technicians. (MSER §5.6)

2. Failure to implement appropriate programming and provide FAPE. (MSER §§ 1.3, 5.1, 10.3,
10.4, 10.5, 12.3)

       Issue # 1: Whether the District violated any procedural regulations in developing
       amendments to the Student’s IEP during the 2005-2006 school year.

       Issue # 2: Failure to provide FAPE by not following an appropriate behavior intervention
       plan. (MSER §§ 1.3, 8.3)

3. Failure to provide appropriate classroom placement and allowable student-teacher ratio. (MSER
§§ 1.3, 5.5(D), 11.6)

4. Ancillary Issue: Failure to respond to the parent’s request that the SAU amend or attach
comments to the minutes from the PET meeting on January 5, 2006. (MSER §15.8)

V. Summary of Findings

 1. The Student is xx years old and lives in Manchester, Maine with his mother, stepfather and an
    older brother. His biological father lives in Augusta, Maine. He has received special education
    and related services since beginning public school.

 2. The Student was evaluated at the Mid-Maine Medical Center’s Developmental Evaluation
    Clinic on November 2, 1994. The evaluation team’s diagnosis included: (1) moderate gross and
    fine motor delays; (2) moderate to severe cognitive delays; and, (3) moderate speech and
    language delays.

 3. In 1997, the Student was diagnosed with Pervasive Developmental Disorder (PDD), a type of
    Autistic Disorder, by psychiatrist Dr. Thomas S. Jensen, M.D. Dr. Jensen noted that the student
    was impaired in his ability to initiate non-verbal conversation or to regulate social interaction
    non-verbally. He reported that the Student did not show an age-appropriate ability to interact,
    imitate games, or interact with people in the environment. However, he suggested getting a
    second opinion from Boston Children’s Hospital.

 4. An IEP, dated June 14, 1999, provided all regular education programming with the exception
    of 100 minutes of speech therapy (ST) per week, 60 minutes of occupational therapy (OT) per
    week, 60 minutes of physical therapy (PT) per week, and 12.5 hours of self-contained services
    per week. He was provided a one-on-one educational technician at all times.

Case #07.009C

    5. In August 1997, Dr. Karen Levine performed a psychological evaluation. She reported that the
       Student was globally developmentally delayed and indicated that he would likely function in
       the mild range of mental retardation. She noted that the Student’s symptoms were not
       characteristic of PDD. Her recommendations included “great emphasis” on speech therapy and
       communication services.

    6. In May 2000, Glen Davis, the District’s Certified School Psychological Service Provider,
       performed a psychological evaluation due to the Student’s disruptive behavior. Assessment
       procedures included Raymond-Binet Intelligence Scale, Fourth Edition (SBIS)1; Bayley Scales
       of Infant Development, Second Edition; and Vineland Adaptive Behavior Scales.2 As a result
       of testing, the Student was diagnosed with moderate mental retardation. It was recommended
       that the following be incorporated into the Student’s programming:

            Matching colors;
            Naming familiar objects, body parts, articles of clothing, furniture, and community
            Identifying concepts of “one,” “two,” and “more”;
            Memorized and correspondent counting;
            Enhancing receptive verbal comprehension by having the Student point to pictures
             depicting action that is described orally;
            Naming action words;
            Demonstrating comprehension of prepositions by following instructions involving
             prepositions (e.g., in, on, under, between);
            Discriminating and imitating drawing of vertical and horizontal lines;
            Copying letters and numbers;
            Assembling inset and non-inset puzzles;
            Sorting objects on the basis of color, shape, or other core features (e.g., distinguishing
             animals from non-animals).

    7. In addition, Dr. Davis emphasized activities designed to promote the Student’s communication
       abilities throughout the day. He recommended direct speech and language therapy, as well as
       implementing a behavior management program to reduce screeching and to enhance “on task”
       behavior and “task completion.”

    8. A Psycho-Educational and Functional Behavioral Assessment (FBA) was conducted by Pamela
       Rasmussen, Certified School Psychological Service Provider, on March 15, 2002, as a part of
       the Student’s three-year evaluation. Recommendations included emphasis on teaching
       functional skills, including communication, self-care, and social skills. In addition, the report
       noted the need for a behavioral program which would be comprehensive, systematic, and
       consistently implemented throughout the day.

  On the SBIS, the Student exhibited a moderate to severe delay in cognitive developmental functioning. His
cognitive development quotient estimate was 49, noted as being in the 1 st percentile. His Verbal Reasoning Area
score was 53, in the 1st percentile. His Abstract / Visual Reasoning Area score was 56, in the 1 st percentile.
  Based on the Vineland Adaptive Behavior Scale, Interview Edition, the student exhibited severe delay in adaptive
behavior overall. The Student exhibited a severe delay in communication abilities (1 year 9 month age equivalent).
The Student’s daily living skills fell into the severely delayed range overall (1 year, 10 month age equivalent). The
Student exhibited a relative strength in socialization, falling into the moderately delayed range (2 years, 7 month age

Case #07.009C

    9. In the FBA, Ms. Rasmussen reported that the Student demonstrated significant behavioral
       difficulties at school and at home. Behaviors observed included perseverative /
       stereotypical behaviors, tantrums, loud noises, refusal to perform activities, few social
       skills, hitting, pushing/pulling, and refusal to follow verbal commands. Her
       recommendations primarily focused on teaching functional skills emphasizing
       communication and functional academics. The evaluation also included a developmental
       assessment using the Psychological Profile Revised (PEP-R). Based on this assessment, the
       Student’s overall developmental level was at a 22-month level.3 Ms. Rasmussen
       recommended data collection about the Student’s participation in activities and his
       oppositional behaviors to measure his behavioral progress. Promoting social skills was also
       recommended. She also stated that teaching functional communication skills would
       decrease inappropriate behaviors, therefore recommended using the Picture Exchange
       System Program (PECS) to systematically increase the Student’s ability to communicate
       with others. In addition, she recommended a behavior plan which targeted not only a
       reduction in inappropriate behaviors, but also the substitution of functionally inappropriate
       behaviors. “Any behavioral program needs to be comprehensive, systemic, and consistently
       implemented throughout the day.” To evaluate the effectiveness of the plan, she stated that
       a measurement system was also required. This included baseline data gathered over two
       weeks prior to implementing a behavior plan.

    10. An “Individual Learning Agreement,” dated April 11th, 2002, noted that the Student exhibited
        temper tantrums (screaming, pushing, and hitting) when he was required to do a motor task or a
        task that was not on his usual agenda. Eight academic goals were noted in the Agreement. The
        Agreement also noted that consultation was undertaken with the Bancroft Neurohealth Center
        for assistance with “behavioral issues.” No IEP was provided to the complaint investigators for
        the 2002-2003 school year.

    11. In an interview with one of the complaint investigators, Paula Phillips, one of the Student’s
        educational technicians at Manchester Elementary School, said she had worked with the
        Student for four years (2000-2004). She described him as a “great kid,” and said “she had no
        trouble with him.” During the four years she worked with him, she only could recall two
        incidents in which the Student acted out aggressively.4 She noted that she had taught the
        Student how to count, identify colors, and use the PECS system. She noted that although the
        Student’s mother was initially hesitant to embrace PECS due to her fear that it would impede
        the Student’s communication skills, the mother was subsequently pleased with the results.

    12. A PET for the Student’s annual review was convened on May 22, 2003. The Student was a xx
        grade student at Manchester Elementary School. The minutes from this meeting noted that the
        Student qualified for special services as a student with Multiple Disabilities. Related services
        noted included PT, OT, speech and language instruction, and music therapy. The PET agreed
        that music therapy was a strong point for the Student. The Student’s mother expressed the need

  Developmental functions assessed included imitation of verbal and motor responses, perception, fine and gross
motor skills, eye-hand coordination, cognitive performance, and cognitive verbal responses.
  Ms. Phillips explained that one of the two incidents in which the Student acted out aggressively only occurred
because she had unknowingly grabbed his injured hand, causing him to react suddenly to the pain.

Case #07.009C

       for some level of behavioral consultation and a change in consultants. No determination was
       made on this point.

    13. The Student’s family had been receiving in-home support for him through Richardson Hollow
        Mental Services (RHMHS). The individual service plan provided for 90-day summary
        narrative reports, including school observations. During the extended school year program in
        2003, as provided in the student’s IEP, the RHMHS case manager, Jennifer Raymond 5,
        provided a summary narrative. She noted that the District had eliminated the recreation portion
        of his programming and that, although the Student was making gains, he continued to lack
        social, living, and safety skills.

    14. A Neuropsychological Evaluation was performed by James D. Thomas, Ph.D. on January 27th,
        2004 and February 17th, 2004. The Student’s neurologist, Stuart Stein, M.D., referred him for
        the evaluation to assess his neurobehavioral status and provide recommendations. The
        Student’s general intelligence, as assessed by the Raymond Binet Intelligence Scale, 4th Edition
        (SBIS-4th), was in the severe range of mental retardation. All cognitive measures were in the
        severely to profoundly impaired range. The Student was also diagnosed with morbid obesity. A
        structured interview with the Student’s mother indicated that the Student did not meet criterion
        for Autistic Disorder; however, symptoms of an autistic spectrum disorder were present. In
        total, the Student was diagnosed with the following:

            Severe Mental Retardation;
            Pervasive Developmental Disorder;
            Attentional Disorder, Not Otherwise Specified;
            Developmental Articulation Disorder;
            Developmental Coordination Disorder.

    15. An IEP, dated May 17, 2004, included goals for the development of functional and
        “precognitive” skills. These skills included the ability to choose between two options, comply
        with one and two step commands, and deliver messages to school staff (with monitoring). In all
        cases, one or two verbal or visual prompts were included as part of the goal. Functional skill
        goals included pointing to body parts, greeting of a familiar person, participation in a recess
        activity, following a lunchtime routine (i.e., setting up a lunch spot, wiping mouth and hands),
        assisting in classroom setup and cleanup activities, wiping the table, and cleaning his chin at
        lunch or in the bathroom. The final goal was dressing and undressing himself. Very basic math
        and science goals were also included, as was a PT goal. For all goals, the Student made
        adequate progress or met the objectives by June 2005 (30% to 50% accuracy was all that was
        required in most cases). The PET was amended to include a behavior goal which stated, “(The
        Student) will develop appropriate behavior for learning and interacting with his peers.” The
        objectives included appropriate play with his peers, greeting and bidding farewell to adults and
        peers, responding within three seconds when his name was called, and following five one-step,
        two-step, or three-step directions within ten seconds. In addition, he received 630 minutes per
        week of direct academic and cognitive skill instruction, 80 minutes per week of speech and

  In an interview with one of the complaint investigators, the Student’s mother explained that Jennifer Raymond
acted as the Student’s Case Manager and helped coordinate various services for the Student. She conducted several
in-school observations, arranged the Student’s summer camp program, helped the family find in-home support, and
guided them in areas with which they were unfamiliar. The mother also added that they have in-home support
services through Graham Behavioral Services.

Case #07.009C

     language instruction, 30 minutes per week of OT, 30 minutes per week of PT, 45 minutes per
     week of music therapy, 30 minutes per week of adaptive physical education, and 30 minutes
     per week of adaptive art. Educational technician support was provided for 420 minutes per day.
     Extended school year services were also included. The PET minutes provided to the complaint
     investigators indicated that a behavior plan was not attached to the IEP.

 16. A PET meeting was convened on September 7, 2004. The Student was in xx+ grade at
     Manchester Elementary School. The team discussed the possibility of alternative placements
     for the Student. Mr. Lew Collins, Special Education Director, noted that, while alternative
     placements could be a topic for future discussion and consideration, he did not find the
     discussion relevant at that juncture in the process. The Student’s mother expressed a concern
     that the Student’s IEP was not being implemented properly and that the Student was regressing
     academically based on the decline of his standardized testing scores. Although Mr. Collins
     proposed collecting baseline data, it was not included in determinations made by the PET. The
     team agreed that the Student should participate in regular art, music, and physical education
     classes in order to interact with his peers. Mr. Collins agreed that a PET should be convened if
     the student became aggressive at school, acknowledging the mother’s report of aggression at

 17. Case manager Jennifer Raymond, reported in her narrative summary, dated November 2, 2004,
     that, although the District denied responsibility for the lack of academic progress, it agreed, at
     the PET meeting, to develop a baseline to use as a tool to document and monitor progress. She
     reported that the Student had made gains, but continued to lack social, living, and safety skills.
     She recommended that the education goal be dissolved and a new one established to better
     meet his needs and performance level.

 18. A PET meeting was convened on December 13, 2004 to review the Student’s IEP. The
     Student’s mother remarked that she had noticed some improvement in the Student’s
     communication skills. The team discussed and agreed to start using pictures and symbols to
     help him move around the school.

 19. As part of the PET review, the District’s speech and language therapist, Shannon Cole,
     submitted a written report and recommendation for the use of the PECS. She stated that, “As
     objectives for independence and communication are certainly high priorities for the Student, I
     have given Paula the materials and instructions for a picture communication schedule. This
     schedule will give the Student a concrete idea of what his day looks like as well as the concrete
     beginnings of the concept of time (beginning and end of activities). This will also enable the
     Student to move a bit more independently throughout the school (safely within the sight of
     teachers), as well as increasing his communication opportunities with students and staff at

 20. On December, 13th, 2004 the Student received a Speech and Language progress report. The
     report stated that the Student had been working on “where” questions. The Student had
     accurately answered “where” questions two out of three times with verbal cueing two out of
     three times.

Case #07.009C

    21. A behavior intervention plan (BIP) was added to the Student’s IEP on May 11th, 2005.6 The
        plan noted behaviors which were interfering with the Student’s academic and/or social
        progress. They included refusing to follow directions, verbally interrupting, pinching, slapping,
        raising his voice, engaging in other physical aggression, and disruptive behaviors (i.e., running
        in hallway, peeking under and around things, being too loud). The interventions which were
        listed to develop and strengthen more appropriate behaviors included:

            Clear and consistent directions;
            Pictorial schedule;
            Redirection;
            Separate work space;
            Cueing each incident to stop undesirable behaviors and using words or pictures to express
            Modeling appropriate words if needed.

    22. The PET was convened May 12th, 2005 to discuss the Student’s transition to the MCMS, as
        well as to conduct his annual review. The Student’s mother expressed a desire to continue the
        same level of services in OT, PT, and music therapy. She also discussed behavioral issues and
        noted that it was important to have other specialists and consultants assist school personnel in
        planning the Student’s program. Paula Phillips reported that the PECS was used effectively in
        the morning and that the Student was comfortable using it. There was a concern about
        including other augmentative communication systems, and the team agreed that an
        augmentative communication evaluation would be performed by November 2005.

    23. A Speech and Language progress report, dated May 12th, 2005, described the Student’s
        progress in developing his speech/language skills. According to his Speech / Language teacher,
        Shannon Cole, “The Student had gone from screaming to requesting, pushing past people to
        stopping them to say hello, one word utterances and babble to 3-4 word sentences for both
        describing and requesting.” She went on to say that the Student could describe his world with
        the words, phrases and short sentences he had acquired.

    24. A Year End Summary Report dated May 11, 2005 reported the Student’s progress in music
        therapy. Progress observed by Ellen Bowman, M.S., L.C.P.C., included:

            Increased length of phrasing;
            Increased duration of individual instrument use;
            Increased visual focus and attention to the musical material, as well as to his therapist,
             throughout each session;
            Spontaneous whole body movement as a rhythmic response;
            Clearer articulation of sung and spoken words.

    25. A PET was convened on June 9, 2005 to conduct the annual review of the Student’s IEP and
        discuss his transition into MCMS. The PET determined that the Student would have extended
        school year services which included occupational therapy, physical therapy, music therapy and

  In an interview with one of the complaint investigators, the Student’s mother stated that she had never seen the
Behavior Intervention Plan, dated May 11, 2005, until it was sent to her by the District as a part of the complaint
investigation process.

Case #07.009C

    adaptive physical education. In response to Lewis Collins’ desire to develop a behavior plan, it
    was agreed that Susan Dunn, the special education teacher at the middle school, would meet
    with the Manchester Elementary staff to get additional information regarding the Student’s
    behavior needs and learn about any intervention which had worked successfully for him at
    Manchester Elementary. The Student’s stepfather discussed programming issues relating to life
    skills training, specifically, toilet training. Mr. Collins agreed that the staff could try to
    incorporate toilet training into the Student’s program although at his age it would be difficult.
    In addition, the PET agreed to further explore augmentative communication services and meet
    again once an augmentative communication evaluation was completed by Mark Hammond.

 26. An IEP dated June 9, 2005, noted that the Student functioned between xx and xx months in all
     areas of development. His disability affected his ability to complete self care tasks and his
     ability to be independent in all areas of functioning. In the statement describing the Student’s
     present level of performance, the District noted that he had “many regulatory behaviors he used
     when he is over or under stimulated or wishes to avoid an activity (flapping, chewing, etc.). He
     sometimes exhibits behaviors such as hitting and pinching himself and the adult in his presence
     when required to do a motor task that is not on his agenda.” Academic goals in the IEP

         Pre-level math objectives;
         Pre-cognitive reading skills (i.e., identifying 20 letters, identifying sounds of a given
          letter, matching word cards to words in a story);
         Pre-vocational skills (i.e., taking care of personal belongings and his work space,
          complying with one- and two-step instructions, and dressing / undressing himself).

 27. The IEP also included a speech / language goal which stated, “(The Student) will increase his
     expressive and receptive language skills from a moderate / severe level to moderate levels in
     the areas of effectiveness of communication and observation / informal assessment as
     demonstrated on the Language Severity Rating Scale . . . to become a more effective
     communicator.” “Adequate progress was made in all short-term objectives except for learning
     to recognize the beginning and ending of a conversation or topic. Inadequate progress was
     made in understanding basic concepts by verbalizing the concept or by acting out the idea 3 out
     of 4 times. Inadequate progress was made in using possessive nouns and phrases. Notably, the
     Student made adequate progress in decreasing excess behaviors (verbal perseveration, hitting,
     and screaming) by using activities or picture stimulation, and responding verbally or by
     pointing to express his needs and wants or his emotions 3 out of 4 times over 3 consecutive
     sessions.” The IEP also indicated that the Student had a behavior plan, although it was not
     attached to the document provided to the complaint investigators.

 28. In a letter to the District’s superintendent, dated July 8, 2005, the Student’s mother expressed
     her frustration regarding the sudden change of summer programming provided to her son. She
     referenced the PET agreement, made on June 9, 2005, to provide music therapy during the
     Student’s ESY program for 60 minutes per week. According to the Student’s mother, music
     therapy sessions were discontinued suddenly and not provided to the Student for the extended
     summer year program. In response, the District mailed a check to the mother to cover the
     expense of a music therapist.

Case #07.009C

    29. In an e-mail to one of the complaint investigators, Mr. Collins explained that the contract of the
        staff member hired by the District to provide music therapy services during the summer of
        2005 was not renewed because of contract violations. 7 In a follow-up e-mail, Mr. Collins noted
        that the District contracted with a musical therapist beginning in September 2005 and that the
        Student would be provided with regular music therapy services through June 2006.

    30. In a summary narrative dated August 2, 2005, Jennifer Raymond, the RHMHS case manager,
        reported that no behavior plan had been in place during the extended school year program, and
        that the Student had been given timeouts for expressing himself (i.e., interrupting). She
        reported that he continually struggled with communicating his wants and needs.

    31. In a letter to the District dated August 15, 2005, Wendy A. Stewart, the Student’s neurologist,
        reported that the Student’s behavioral issues, including pinching, yelling and kicking, were
        becoming a concern. She stated that the behaviors would escalate without “intensive
        intervention.” Dr. Stewart requested that behavioral therapy be provided at school and noted
        that she was changing the Student’s medication to help with his mood. “It is crucial that there
        be consistency in how he is dealt with in all his environments (home and school).”

    32. On October 12, 2005, the District received the report of an Augmentative Communication
        Evaluation performed by Mark Hammond.8 Mr. Hammond reported that the Peabody Picture
        Vocabulary Test (PPVT) indicated that the Student’s receptive language skills were scored at
        the age equivalency of a two year old child. With respect to expression, Mr. Hammond
        reported that the Student’s skills were at the two year, eight month range. Mr. Hammond
        reported that, given the Student’s demonstrated difficulties in learning to sort similar objects, it
        was likely that “any new learning will require much repetition and practice utilizing a
        consistent prompt hierarchy.”

    33. Based on his assessment, Mr. Hammond stated that the Student was a prime candidate for
        “Systematic Instruction.” He stated, “This instruction should include task analyses of skills that
        are to be targeted and a step-by-step procedure for implementation. In addition, a data
        recording method should be developed in order to monitor progress.” He noted that the skills to
        be targeted were those to be identified during the Assessment of Basic Language and Learning
        Skills (ABLLS), which had not been completed by District staff at the time the report was
        submitted. Mr. Hammond further explained in his report that systematic instruction included
        the use of “reinforcers” to motivate the Student to participate. He stated that a systematic
        instructional protocol would include a “consistent prompt hierarchy.” “The prompt hierarchy
        would delineate the steps that would be taken in the event that (the Student) was not successful
        on task.”9 The augmentative communication and treatment considerations he recommended

   In an interview with one of the complaint investigators, Mr. Collins elaborated on the termination of the Student’s
music therapy services during the summer of 2005. He explained that Maine has no certification or licensure for
Music Therapy and that the Student’s mother was given funds to secure music therapy services directly. All affected
parents were notified in writing as to the lack of a licensed provider. He explained that the district wanted to honor
this IEP service, but because there was no state-recognized process for confirming the legitimacy of the service, the
task of finding a qualified provider had become problematic.
  The document submitted to the complaint investigators, entitled “Augmentative Communication Evaluation,”
listed conflicting date information on the form. The Date of Services was listed as 7/25/2006 and 9/16/2006.
However, the school had date-stamped the form on October 12, 2005.
  Mr. Hammond explained that “A typical prompt hierarchy may include a naturally occurring prompt such as an
initial request. A specified amount of time would be provided following the initial request prior to instituting any

Case #07.009C

       included visual supports (i.e., sentence strips, visual schedules for his daily activities). Mr.
       Hammond stated, “By referring to the schedule, (the Student) may be able to effectively
       transition from one activity to another without a significant amount of support.” He also
       suggested a Dialogue Specific Communication Display (DSCD).

  34. Based upon his evaluation, Mr. Hammond’s final recommendations included the following
      programming for the Student:

             Strategies implemented to provide the Student with a means to improve functional
              communication abilities;
             Define basic skills through the ABLLS;
             Implementation of a prompt hierarchy incorporating nonverbal prompts to a greater
             Consideration for utilizing visual supports to facilitate more spontaneous verbal
              responses and interactions
             Further consultation and support for the development of a functional communication

  35. In an RHMHS narrative summary, dated November 3, 2005, Jennifer Raymond noted that the
      Student had limited verbal communication skill but that a PECS program had been in place.
      She stated that the Student had responded well to sign language in the past, but the District had
      limited experience with American Sign Language. She also noted that the Student still lacked
      living and safety skills.

  36. A PET was convened on November 11th, 2005 to review the augmentative communication
      evaluation performed by Mark Hammond. During the meeting, Mr. Hammond shared his
      perspective of the Student’s current level of development, indicating that the Student scored at
      an age equivalency of a child two years of age on the PPVT scale. The minutes also noted that
      the ABLLS evaluation had not been completed at that time. However, the team saw some
      emerging concerns, including the Student’s difficulties in performing motor tasks with verbal
      prompts. Mr. Hammond recommended that targeting needed skills and identifying effective
      ways of teaching were important. He also stated that it was important to develop automatic
      responses to prompts such as “stop” and “sit down.” Reinforcers and visual prompts, such as
      clocks, would also be helpful.

  37. During the PET meeting, the Student’s mother asked whether the staff and parents needed
      training in order to implement Mr. Hammond’s recommendation. He responded that “coaching
      type support” would be useful for the team. The PET minutes stated that, “The issue would be
      in the funding of the support.” The minutes did not attribute this statement to a particular

additional prompts. A typical prompt sequence would include the naturally occurring prompt with a delay of up to 5
seconds before a subsequent prompt was provided. The second prompt would typically be most effective if it was a
tactile or physical prompt to assist [Student] towards the task that was desired. If the second prompt did not elicit a
correct response, then a physical assist to complete the tasks could be provided. This type of a prompt hierarchy
could run through essentially all his activities and establish consistency in his program. Any time prompts are
instituted, it is critical that a plan be made for fading those prompts. Currently it appears that [Student] is frequently
looking for prompts from his support persons. Often times, prompts are provided verbally. The emphasis on this
prompt hierarchy would be to provide nonverbal prompts whenever possible.”

Case #07.009C

         person. After further discussion, it was determined that the team would finish the ABLLS study
         and reconvene to develop an appropriate program.

     38. On December 14, 2005, the Student received a Critical Incident Report (CIR) 10 for acting out
         in an aggressive manner. Linda Kittredge, an education technician, reported that the Student
         refused to do his attendance job in the morning. He began throwing his attendance envelope on
         the floor and refusing to walk upstairs. In the classroom and hallway, the Student punched, hit
         and pushed Ms. Kittredge. In one classroom, the Student pushed Ms. Kittredge against the wall
         and held his right hand to her throat, but stopped when he was redirected. Her intervention
         included pointing at the job clipboard and using fingers to redirect the Student.

     39. A PET meeting was convened on January 5, 2006. Mr. Hammond again reviewed the results
         from his evaluation. The team also discussed the functional skill areas identified by the
         District’s completed ABBLS. Eighteen targeted skills were identified. They included “visual,
         receptive language, imitation, visual imitation, requests, labeling, intraverbal, play and leisure,
         group instruction, following classroom routines, reading, math writing, spelling, dressing,
         eating, grooming and toileting.” The PET also agreed to include a safety drill as part of the
         ABLLS. During his discussion with the team regarding instructional techniques, Mark
         Hammond emphasized the importance of using the prompt hierarchies. He stressed that the
         staff and parents needed to be “on the same page” in using the same procedural strategies in all
         of the Student’s learning. He also stated that a visual schedule for the Student to use was “a
         must.” He explained the “basic rules” in using prompts, such as using five second delays
         between each prompt. He explained that the “typical” prompt hierarchy was an initial prompt, a
         delay of three to five seconds, then the next level prompt. The delay is always part of the
         strategy, he stated. He also noted that dialog displays could be helpful for the Student to
         express himself. Lew Collins stated that the use of prompt hierarchies should be reflected in the
         Student’s IEP. In addition to suggesting the use of PECS, Mark Hammond also explained the
         importance of using a simple data recording system to track the Student’s progress. Lew
         Collins also added that this “systematic instruction” allowed for charting.

     40. The Team then discussed several functional skills identified in the ABBLS that should be
         targeted using this teaching strategy. The Student’s parents stated they had not seen the study
         and would need time to review it themselves. The team agreed that specific areas needing
         initial attention were toileting and safety. Mr. Collins summarized the team’s agreement to
         “develop a prompt hierarchy for virtually everything we do with him as far as demands on him.
         The school’s going to be prepared to offer systematic instruction for objectives.”

     41. The Team also discussed a request by Lou Macintosh, advocate for the Student’s parents, that
         the District continue to employ Mark Hammond to train the staff and parents, implement the
         program, and observe its progress. Lew Collins responded that the District’s staff was
         competent to implement Mr. Hammond’s recommendations. In addition, he stated that the
         District had contracted with child psychologist Bruce Chemelski, who was familiar with
         designing these plans. Mr. McIntosh stated that, although Dr. Chemelski had expertise in some
         areas, he did not have expertise in the area of communication development. Mr. Collins replied
         that the District’s speech pathologist was well-qualified in the area. With respect to continuing

 A Critical Incident Report is generated by the District any time there has been physical contact between anyone.
No judgments are made as to the intent of the parties involved in the event.

Case #07.009C

    with Mr. Hammond, Mr. Collins stated, “If I had a blank check I’d do it tomorrow and Mark is
    not cheap.”

 42. The PET also discussed the Student’s recent behavior problems. Mark Hammond stated that
     when consistent approaches and a hierarchy of prompts were used, it would help everyone to
     determine the causes of the Student’s outbursts. Mr. Collins suggested that Bruce Chemelski
     draft a behavior intervention plan based upon a functional behavior assessment performed by
     District psychologist Susan Hollinger.

 43. The determinations of the PET meeting held on January 5, 2006 included: (1) the
     “development of programming and hierarchy of prompts” which would address goals and
     objectives to be identified at the PET meeting on January 31, 2006; and, (2) a Functional
     Behavior Analysis conducted in conjunction with the development of a behavior intervention

 44. On January 6, 2006, a CIR was issued after the Student pulled the hair of his educational
     technician, Ms. Spinney. On the same day, a second CIR was submitted after the Student
     pushed his teacher. After the second incident, the staff person involved verbally redirected the
     Student and gave him a physical prompt (hand on the shoulder) to go to another area. He
     complied with this request.

 45. On January 9, 2006, a CIR was issued when the Student exhibited aggressive behavior towards
     an educational technician during toilet training. The Student grabbed the staff member in the
     chest area and hit her. When another staff member was called upon to help, the Student swatted
     and hit both staff members while in the bathroom.

 46. In an e-mail to the Student’s teacher, Susan Dunn, dated January 27, 2006, the Student’s
     mother reported that the PET minutes did not mention Mr. Collins’ statement that funding was
     an issue in developing the Student’s IEP. She explained that she wanted the minutes to reflect
     that Mr. Collins twice mentioned that money was an issue in developing the Student’s IEP. The
     Student’s mother also mentioned that she had not received or heard anything regarding incident
     reports during the past week, despite reading in the Student’s notebook that there had been
     quite a few days involving hitting, pinching or pushing.

 47. A CIR was issued on January 30, 2006. The report stated that when the Student was cued to go
     to the bathroom, he threw crayons and paper and then approached Ms. Dunn’s desk, grabbed
     the three-hole punch with the intent to throw it. When the Student was cued to go to the
     bathroom, he got up and started hitting, pinching and grabbing a staff member. Another staff
     member was called in to help calm the Student down. The Student then complied with staff
     instructions to go to the bathroom. In doing so, however, he sat on the toilet pinching and
     hitting himself.

 48. A CIR was issued on January 31, 2006 which reported that the Student hit and pinched himself.
     He also attempted to hit the educational technician when he was cued to use the bathroom. He
     then tried to hit himself in the head and pinched himself on the forearm when the teacher came
     over to make him stand up.

Case #07.009C

     49. In an interview with one of the complaint investigators, Mr. Collins explained that Bruce
         Chemelski began consultation in Ms. Dunn’s program on January 9, 2006 and continued to
         provide consultation through June, 2006.

     50. A PET was convened on January 31, 2006. Dr. Bruce Chemelski, child psychologist, was
         introduced to the team as the District’s psychological consultant. Dr. Chemelski stated that he
         had been asked to review Mark Hammond’s augmentative communication evaluation and
         determine whether he could design a program for the Student. He reported that he had not
         reviewed the District’s ABLLS study yet but understood that there were 18 areas of functional
         skills that were determined to be in need of development. He stated that he did not have enough
         information at that point to develop a program, but believed that, within a few weeks, he could
         have one to submit. He stated that, in the meantime, he understood from the team that there
         were priorities that needed to be addressed immediately. Those areas included a toileting
         program and safety protocols. Dr. Chemelski stated that he had observed the Student twice and
         was convinced that he would need to be trained to use prompt hierarchies and coping strategies
         that addressed behavioral issues. He also stated that the 18 functional areas addressed by Mark
         Hammond should be phased in over time, starting with six programs or drills to avoid
         situations wherein the Student might become overwhelmed. The team agreed that teaching
         “stop” commands was a paramount safety issue. It also agreed to an intensive toileting
         program. The PET minutes noted that the Student was already being taken to the bathroom
         every half hour. The team agreed that this schedule should be continued, and that rewards for
         success should be implemented.11 However, the team agreed that this schedule should not cut
         into his time for kickball, an activity the Student looked forward to every day. It was also
         agreed that the six programs to be implemented would be scheduled for 90 minutes each per
         day. The team discussed speech and language goals, and Dr. Chemelski stated that he would
         propose a level of service. The team also discussed whether Dr. Chemelski would be available
         for training the District staff and the parents. Lew Collins stated that Dr. Chemelski would not
         be available by telephone or after school hours. However, he agreed that training would take
         place for two full days between February and March. An extra two hours per month would also
         be included.

     51. The PET also discussed the results of a Functional Behavior Assessment (FBA) and a draft
         behavior plan designed by District psychologist Susan Hollinger. Ms. Hollinger reported that
         the FBA was based upon observations and interviews. Her findings indicated that the Student’s
         perseverations were of a concern and opined that they were due to his neurological disabilities.
         She prioritized the three major behavioral issues as being aggressive behaviors: non-
         compliance to adult verbal direction and the inability to stop (or continue) a task on command.
         She stated that the antecedents to these behaviors included food, transitions and verbal cues,
         and that “reinforcers” included food and music. The parents noted that the Student had a
         history of hitting himself. Ms. Hollinger stated that the hitting was not included because she
         had not personally seen it, but since it had been reported, it would be included in the noted
         behaviors. The team discussed the Student’s inability to communicate his needs and whether
         the staff understood that this might be part of the problematic behaviors. Lou McIntosh, the
         parent advocate, stated that the FBA was not detailed enough, nor had it been performed over a
         long enough period of time to produce meaningful data. The parents noted their frustration with

  The PET minutes described the toileting regimen in more detail. The Student was taken to the bathroom every half hour. He
was to sit on the toilet for ten minutes unless he was already wet. If he had a successful “hit” (urination or defecation), he was
rewarded. He had only one successful hit in the two weeks prior to the PET meeting.

Case #07.009C

        the lack of communication with the District (they had not seen the draft behavior plan until that
        day) and believed that the District had not been following through with its efforts to introduce a
        communication program that would help the Student communicate to the staff about his needs.
        No further agreement was reached on the implementation of a behavior plan at the PET

     52. The determinations made by the PET at the meeting on January 31, 2006 included:

             Two hours per month of psychological consultation;
             Two days (18 hours) of psychological consultation to the staff;
             One day (6 hours) of consultation to the parents for family consultation;
             The toileting program based on 30 minute intervals with one exception during the day;
             Skill area programs in six identified skills areas at a time;
             Direct instruction increased by one period per day;
             Participation in MEA testing through PAAP portfolio assessment;
             All other IEP services continued as written in previous plan.

     53. An IEP, although dated January 31, 2006, was not signed by Lew Collins until March 3, 2006.
         There was no change in the language of the “Statement of the Child’s Present Level of
         Education Performance” from the previous IEP, dated June 9, 2005. The IEP included
         numerous accommodations, including a written behavior plan and “alternative instructional
         style.”12 The IEP was modified to include a communication goal using a behavior intervention
         plan. It stated, “Given a specific behavior program implementing prompt hierarchy, (the
         Student) will reduce the number of aggressive incidents by 20%, as measured by data
         collection, by 1/30/07.” Other new objectives included urinating in the toilet, properly washing

 -    No homework
 -    Positive/consistent reinforcement
 -    Defined limits/expectations
 -    Use behavior report
 -    Cooling off periods
 -    Stand or move about occasionally
 -    Involve parent
 -    Written behavior plan
 -    No homework
-    Preferential seating
-    Use manipulatives
-    Alternative instructional style: written
-    Alternative instructional style: oral
-    Alternative instructional style: demonstration
-    Alternative instructional style: hands-on
-    Give positive/consistent redirection
-    Involve parent
-    Awareness/IEP
-    Curriculum review
-    Consultation
-    Supportive teaming
- No homework

Case #07.009C

        and drying hands, responding appropriately to a “Stop” command, correctly identifying himself
        to others, and responding when his name was called.

     54. A “Positive Behavior Support Plan” (Behavior Plan), dated February 2, 2006 was also added to
         the IEP. This document was not attached to the IEP sent to the parents. Susan Dunn reported to
         one of the complaint investigators that since the PET did not agree to a positive intervention
         plan, the District unilaterally designed the February 2, 2006 Behavior Plan. The Student’s
         parents reported to one of the complaint investigators that they had not seen this document until
         the complaint investigation began. The Behavior Plan indicated that the Student’s negative
         behaviors resulted from “task avoidance” and his wish to “stay at present task”. The problem
         behaviors were described as typically occurring in all environments. The following was listed
         under the section entitled “Behavior skills to be taught / Intervention plan”:
           (1) Follow prompt hierarchy -- starting at step appropriate to behavior being presented
                      i. Gesture - pointing, physical gesture to direct by staff
                     ii. Verbal - verbal cue to discontinue behavior (“Stop”)
                    iii. Light physical - light touch to redirect
                    iv. Physical - physical guidance or hand over hand prompt to redirect

     55. Under the Behavior Plan, the Student was to be given rewards, including praise and “choice of
         task given.” If the Student exhibited targeted negative behaviors, the prompt hierarchy was to
         be used immediately. One consequence of this negative behavior was that the Student “may not
         return to chosen activity/engage with chosen object.”13

     56. On March 5th, 2006, the Student’s mother sent a letter to Superintendent Richard Abramson
         outlining twenty key parental concerns. Included among the concerns were issues related to the
         lack of a behavior plan and her contention that the IEP was substantially inappropriate. In light
         of the 20 parental concerns, the Student’s mother expressed concern that MCMS was not an
         appropriate placement for the Student and requested that the team discuss other placement
         options. She expressed her concern that, due to the Student’s age and physical maturity, he
         needed an intensive program focused on enabling him to gain independence.

     57. Jennifer Raymond, the RHMHS case manager, conducted separate observations on March 9
         and April 5, 2005. No difficulties were noted in her reports. The Student appeared to respond to
         prompting and was cooperative. In her report dated April 29, 2006, Jennifer Raymond stated
         that during her observation, the Student’s behavior was inappropriate. He began pinching the
         educational technician. She reported that she asked Susan Dunn to suggest a replacement
         behavior appropriate for that circumstance, to which Ms. Dunn explained that she had not been
         in touch with Dr. Chemelski.

     58. Dr. Chemelski submitted an A.B.A. Program Development Summary (Program Summary) to
         the District sometime in April 2006.14 Dr. Chemelski explained in the report that, although 18
         functional skills in the ABLLS results were identified as needing development, the Student’s
         initial program would be limited to six programs at a time. The first six included Safety,

   In an interview with one of the complaint investigators, the Student’s mother stated that she had no knowledge of the existence
of the behavior plan dated 2/2/06 until she received a copy of it during the complaint investigation process. In fact, the copy of
the Behavior Intervention Plan provided to the complaint investigators, had a signature line for the parents that was not signed.
The regulations do not require that IEPs be signed by parents.
   The parents indicated to one of the complaint investigators that they did not receive this report until July 2006 .

Case #07.009C

           Toileting, Social Questions, Self Introduction, Asking for Help, and Material Usage (preparing
           for a task and cleaning up after a task has been completed).15

     59. All of these programs involved verbal or visual cues and step-by-step protocols. Those
         programs that focused on the Student initiating communication to others included self-
         introduction and asking for help. The self-introduction piece required initial “coaching” to
         remind the Student to “meet” (greet) a person and tell them his name. The coaching would fade
         once he became more successful. The Asking for Help program was designed to have the
         Student communicate his basic needs. It was perceived as a strategy to prevent negative
         behaviors by letting people know he was confused, couldn’t complete a task independently,
         was frustrated, or needed to take a break from a task.

     60. Dr. Chemelski’s Program Summary did not include any speech and language programming, as
         was discussed at the January 31, 2006 PET meeting.

     61. Although Dr. Chemelski’s report was submitted sometime in April 2006, some of the programs
         outlined in his report were roughly included in the IEP that was signed on March 3, 2006. The
         IEP did not label the programs as specifically as Dr. Chemelski did in his report. Only the
         toileting program and safety program were clearly identified in the IEP. The other four
         programs were vaguely worded and imbedded with other objectives not related to the Program

     Specifically, the six programs were described as follows:
      1) Safety Program: This program was designed to help the Student consistently respond to an adult-imposed limit such as
            “stop” or “stay.” “The safety issue that made this skill area a priority for team members is that (the Student) does not
            always stay in assigned areas or, once attempting to leave an area, does not always respond to prompts designed to
            prevent him from placing himself in a potentially dangerous situation/location (e.g. crossing a road or parking lot)”.

      2)    Toileting Program: Referring to the comprehensive program already in place, the input from Dr. Chemelski was
            designed to facilitate the Student’s ability to acquire daily living skills, make the program as efficient as possible to
            limit the amount of time at school or home that the program consumed and to monitor consistency in the protocol’s
            implementation across those serving the Student.

      3)    Social Questions Program: The Social Questions Program was an area of skill development that Dr. Chemelski
            indicated was related to safety issues (i.e. having the ability to provide information about himself if he were lost). “The
            goal of this program is to increase the consistency of (the Student’s) responding to basic information about himself and
            his personal life. This skill area is seen as relating to functional skills and has the potential to relate to safety issues.”
            Seven initial questions were developed by the District staff. They included: What is your name?; Where do you live?;
            What street do you live on?; What is your mother’s name?; What is your father’s name?; What is your last name?
      4)    Self Introduction Program: Dr Chemelski stated that this goal “is to increase (the Student’s) ability and consistency, in
            initiating, rather than just responding to others, social contact. At the basic introductory level of social interaction is
            helping (the Student) to tell others his first name.” and June 2006.
      5)    Asking For Help Program: This skill area was determined to be a preventative measure to help the Student improve his
            communication among others in a “work/demand” which would reduce negative behaviors that expressed his confusion
            or frustration.
      6)    Material Usage Program: This area was designed to increase the Student’s independence with respect to preparing for a
            task and cleaning up after a task had been completed. The Student had not exhibited these skills on a consistent basis
            and it was considered one of the important targeted areas under Dr. Chemelski’s ABA program.
      7)    Following Two Step Directions: This program was designed to enhance the Student’s ability to consistently attend to
            and follow a set of directions. It was designed so that the components of a direction set would be familiar to the
            Student. The directions would be practical and functional. Dr. Chemelski included directions that were suggested by
            staff and parents. They included standing up and pushing in a chair; going to the bookshelf and choosing a book;
            standing up and going to the bathroom; sitting down and pushing in the chair; and going to the computer and sitting in
            the chair. None of these two-step directions were included in the Student’s IEP.

Case #07.009C

    Summary set. The Social Question Program was not referred to in the IEP, except for an
    objective to have the Student introduce himself.

 62. In an interview with one of the complaint investigators, Susan Dunn explained how some of the
     new IEP objectives reflected the programs in the ABA Program Summary as follows:

        a. The Safety Program was reflected in the “STOP” command and was associated
           with the goal of becoming an effective communicator. The objective was stated as,
           “Given instruction and practice, (the Student) will respond appropriately to the
           command “STOP” 10/10 times, as measured by data collection, by 1/20/02.” No
           augmentative communication strategies were included within the objective for
           achieving the goal other than “practice.”
        b. The toileting skill objective was stated as, “Given specific toileting program and
           schedule implementation, (the Student) will urinate in the toilet, as measured by
           data collection, by 1/30/07.”
        c. The Self Introduction program was associated with the IEP goal of becoming a
           “Self-directed and life long learner. It was stated as, “Given instruction, practice,
           and various setting, (the Student) will correctly identify himself to others, 9/10
           times, as measured by data collection, by 1/30/2007.”
        d. The objective identified with the Asking for Help program was stated as, “Given
           instruction and practice, (the Student) will indicate needs and wants either verbally
           or with a picture, 8/10 times, as measured by data collection, by 1/30/07.”
        e. The objectives associated with Material Usage program were stated as “Given
           instruction and practice, (the Student) will get out and return needed materials, 8/10
           times, as measured by data collection, by 1/30/07,” and “Given instruction and
           practice with decreasing guided assistance, (the Student) will appropriately spread a
           substance with a knife onto a cracker or piece of bread, 8/10 times, as measured by
           data collection.”
        f. The “Social Questions” program was reflected only in the objective which called
           for the Student to answer the question “What is your name?”

 63. The IEP included very little information regarding the augmentative communication
     techniques, whereas Dr. Chemelski’s Program Summary, was very specific about this area
     within each program. His approach echoed Mark Hammond’s mandate that consistency
     and step-by-step procedures were going to be the hallmarks of successfully implementing a
     Systematic Instruction program.

 64. On May 1, 2006, Mr. Collins e-mailed the Student’s mother. He noted that it was nice to talk to
     her and stated his intention to “start working on a possible placement for the Student next year
     that may better meet his needs.” He stated he would contact the Margaret Murphy Center and
     let them know that “the district would support this placement if the PET agreed.” Furthermore,
     he stated that they would discuss other meaningful placement options for the Student if the
     Margaret Murphy Center was not able to accommodate him.

 65. A CIR was issued on May 8, 2006, resulting in the Student being physically restrained. First,
     the Student hit and pinched himself while playing on the red ball. Then, the Student was told it
     was time to use the bathroom and he proceeded to run away down the hallway. The Student

Case #07.009C

        was instructed by staff to stop running. The Student stopped and then approached the staff
        member in an aggressive fashion. Two other staff members had to provide assistance by
        physically restraining the Student to prevent him from hitting them.

     66. The District submitted to the complaint investigators the dates on which Dr. Chemelski visited
         the District: February 23 (home visit), March 6, April 3, and May 15, 2006. The mother stated
         to one of the complaint investigators that Dr. Chemelski made a home visit on February 23,
         2006, but only to observe the Student in the home setting. She stated that she was never trained
         by Dr. Chemelski.

     67. On May 16, 2006, Jennifer Raymond, the RHMHS case manager, noted that the Student
         required several verbal and physical prompts to comply with directions, and engaged in
         inappropriate behavior by yelling to the teacher while she was on the telephone.

     68. A CIR was issued on May 17, 2006. It stated that the Student hit a staff member across the face
         while working with her on a lesson plan. After the incident, the staff member removed herself
         from the Student’s work area.

     69. A CIR was issued on May 23, 2006. It stated that the Student had to be physically restrained.
         After a verbal cue to wash his lunch dish, the Student grabbed the dirty dish and took it out of
         the sink. When the educational technician put the dish back in the sink, the Student cried and
         trembled and then hit the technician in the face and screamed. When the Student’s teacher
         came over and stood in front of the him, he grabbed her by the shirt front and also grabbed her
         leg. When the teacher backed up, the Student attempted to get objects from a drawer to throw at
         her. During this time, the Student’s hands were held for fifteen seconds to prevent him from
         hurting anyone.

     70. A CIR was issued on May 24, 2006. It stated that the Student hit a staff member. The Student
         was also pinching, hitting and grabbing the staff member throughout the duration of a lesson.
         Thereafter, the staff member removed herself from the situation and the Student worked by

     71. In a School Observation Report dated June 8, 2006, Jennifer Raymond noted that the Student
         accepted directions with prompts and transitioned between activities with support.

     72. In a School Observation Report dated June 13, 2006, Ms. Raymond noted that the Student was
         aggressive (pushed staff away) and was easily distracted by his peers. Furthermore, the Student
         refused to respond to directions. His teacher, Ms. Dunn, noted that in the classroom in which
         she and the Student were located, it was difficult to separate students because of the classroom
         “set up.”

  On the CIR dated May 24, 2006, it was noted that only two critical incidents were previously issued during that
school year. This is incorrect information. The Critical Incident Report dated May 24, 2006 was, in fact, the tenth
report received during the 2005-2006 academic year for the Student according to the documentation provided to the
complaint investigators.

Case #07.009C

     73. The District reported progress levels on the Student’s IEP in June 2006. Inadequate progress17
         was noted in several objectives that were added to the IEP after January 31, 2006, including the
         Toileting, and Safety Programs, the two areas given the highest priority by the PET. Inadequate
         progress was also made toward the behavior goal added to the IEP dated January 31, 2006. The
         only program in which the Student made adequate progress was the “Asking for Help”

     74. At the request of the Student’s parents, a PET was convened on July 11, 2006 to discuss
         possible out-of-District placements for the 2006-2007 school year. The PET minutes noted that
         the Student’s mother and Mr. Collins had informal discussions during the spring about the
         possibility of placing the Student in a program for students with autism. The parents had visited
         the Margaret Murphy Center in Auburn, Maine and the Merrymeeting Center for Child
         Development in Bath, Maine. Although they preferred Merrymeeting, they were informed by
         the school that it could not provide a program for the Student due to his age and high level of
         need. The Student’s mother informed the team that she had made a referral on her own to
         Crotched Mountain in New Hampshire and planned to pursue that as a possible placement.
         Susan Dunn, the Student’s teacher, noted that while the Student had made adequate progress in
         many of his goal areas, he had not become toilet-trained, despite intense work by staff and
         parents. The team also discussed the classroom situation and agreed that the class where the
         Student attended was noisy and contained more than 15 students, most of them with significant
         needs. Principal Callan explained that MCMS had received an inordinate number of students
         with significant needs last year, and that Ms. Dunn’s program would be expanded in the
         subsequent year to include a smaller room for the Student and one or two other students. Mr.
         Collins also stated that he was in the process of advertising for a full-time special education
         teacher with ABA experience to work exclusively with the Student and to provide direct
         instruction in a less distracting environment. The Student’s parents requested that the
         candidates considered for this position be willing to work with the Student, stating that some of
         the educational technicians were afraid of him. The PET did not issue any determinations from
         this meeting but agreed to meet after the parents and Ms. Raymond had discussions with the
         state agency in charge of residential placements.

     75. In a narrative summary by Jennifer Raymond dated July 20, 2006, Ms. Raymond stated that,
         with respect to the Student’s educational program, “Mark Hammond recommended that the
         Student have an ABA program, use of ABBLS, development of a prompt hierarchy, utilize
         visual supports, and develop a functional communication program. His current program does
         not reflect these recommendations. Parents have been advocating strongly for an appropriate
         educational program and are consulting with an advocate. The educational team and family
         have been exploring ABA programs. There are no openings within the state that are able to
         meet his needs and have availability. (The) Mother has found one out of state, which is being
         looked into.”

     76. In an e-mail dated July 21, 2006, Mr. Collins reported to the Student’s mother that there was a
         one-year waiting list for the Margaret Murphy Center.

 “Adequate progress” was coded as a “2.” “Inadequate progress” was coded as a “3.” For some objectives, Susan
Dunn assigned a “2-.” For purposes of this report, a “2-“ is not defined as the Student having made adequate

Case #07.009C

     77. A PET meeting was convened on August 23, 2006.18 The team was to review the Student’s
         2005-2006 progress. Both the Student’s mother and stepfather had a difficult time with how the
         school staff used the terminology “adequate progress.” The Student’s mother noted that
         “adequate progress was a misleading term because oftentimes the Student was only meeting the
         goal in certain situations.” Ms. Dunn explained that “adequate progress” was used to describe a
         goal toward which the Student was still working and making good progress, but had not yet
         been met. When Ms. Dunn stated that the Student had received “adequate progress” in a
         Speech/Language exercise where the Student had to use an adjective and noun together, (i.e.
         the Student saying, “red truck”) the Student’s mother said she had never heard him string an
         adjective and noun together at home. The Student’s stepfather again noted he was having a
         difficult time understanding the definition of “adequate progress”. He questioned whether it
         was getting something correct 1 out of 10 times, or 5 out of ten times. Ms. Dunn and Mr.
         Collins explained that adequate progress could be statistically explained as a seventy-five
         percent success rate (the student is doing it right 75 out of 100 times).

     78. The PET also discussed placement alternatives for the Student. Mr. Collins presented to the
         team the idea of hiring a special education teacher specifically assigned to the Student. He also
         suggested that a self-contained room with up to four other students would also be assigned to
         the Student. He stated that direct instruction would occur for four hours per day, with another
         hour per day for lunch and non-academic activities. The parents stated their preference for
         Crotched Mountain School in New Hampshire. However, Mr. Collins responded that the
         school would not be the least restrictive placement for the Student. He cited the IEP progress
         notes indicating that the Student had received “meaningful educational benefit” at MCMS.
         Since the parents did not agree, and thus the PET could not reach consensus, Mr. Collins made
         the determination that the Student would attend MCMS with the program described above.

     79. The PET also discussed the music therapy services being provided to the Student as part of his
         IEP. Mr. Collins explained he had been informed that the music therapy program was
         detrimental to the Student. Susan Dunn elaborated that music therapy alone was not harmful to
         the Student, but that after he attended music therapy, he was off task for the rest of the day and
         could not concentrate on the rest of his academic tasks. Although both the Student’s mother
         and stepfather expressed their concern that music therapy was being eliminated, Mr. Collins
         made the determination that music therapy would no longer be provided as a related service.19

     80. In an interview with one of the complaint investigators, Susan Dunn, the Student’s special
         education teacher, stated that the Student’s classroom during the 2005-2006 school year was
         very distracting for the Student. She stated that there at least 15 students in the room at the
         time, and the room had a kitchen where students were actively working. She stated that the
         2006-2007 school year placement and personnel arrangements had been modified to address
         these concerns. She stated that a special education teacher had been hired and assigned
         exclusively to the Student. A male education technician had also been hired, in addition to the

   The Student’s mother submitted an audio tape to the complaint investigators documenting the August 23, 2006,
PET meeting.
   In an e-mail to one of the complaint investigators, Mr. Collins stated that the music therapist’s contract was not
renewed due to complaints about his conduct from parents, teachers, and other providers. Mr. Collins explained that
during the Student’s PET meeting on August 23, 2006, the team could not reach a consensus regarding music
therapy services, and that as a result, he made the determination that music therapy was not necessary in order for
the Student to benefit from the special education program.

Case #07.009C

        three educational technicians that the Student had during the 2005-2006 school year. She also
        stated that the District assigned a self-contained classroom for the Student. She noted that the
        new special education teacher to which the Student was assigned was a former teacher at the
        Margaret Murphy Center and had knowledge in APA instruction. The new educational
        technician had a degree in music and might use music during his instructional time with the

     81. Ms. Dunn also stated her opinion that Mr. Mark Hammond was the preeminent expert in the
         state of Maine with respect to speech and language development. His report and
         recommendations to the District regarding the Student’s communication and language
         development were key to the improvement of the Student’s IEP. She stated that, although Mr.
         Hammond was unable to implement his recommendations, the District worked with Dr.
         Chemelski to do so on a modified basis. She stated that, based upon Dr. Chemelski’s
         recommendations, the District initially focused on six skill areas and used prompt hierarchies to
         implement the six programs.20 The six hierarchies started with the least intrusive prompt to the
         most intrusive, i.e. “hand-over-hand” prompt. She stated that a prompt hierarchy existed within
         each of the six skill areas. She also noted that other augmentative communication techniques
         were being used with the Student, including the Picture Exchange Communication System
         (PECS) and some American Sign Language (ASL). She stated that over the course of four
         months, Dr. Chemelski came to the District three times to train staff and once for a home
         session with the family.

     82. In addition, Ms. Dunn stated that the Student needed a positive intervention behavior plan that
         focused on weaning the Student away from his aggressive behaviors. She stated that a
         Functional Behavior Assessment was performed by the District’s psychologist, Susan
         Hollinger, in January 2006. Part of the behavior plan was designed to help the Student learn
         how to communicate his needs and wants, especially when he was frustrated and tended to
         become aggressive. Ms. Dunn felt that a behavior plan was never agreed upon by the PET
         because of the parent’s disagreement over the FBA and draft behavior plan submitted to the
         PET on January 23, 2006. She stated that when the IEP was drafted and sent to the parents, she
         attached the Behavior Plan that was not based upon the FBA. She stated that the Behavior Plan
         was not designed to reduce the negative behaviors, but to react to them. She shared her belief
         that the Student needed a truly positive plan that included a communication development
         component. She also stated that she has been meeting with the District psychologist once a
         week and sometimes daily to discuss the Student’s progress.

     83. Ms. Dunn reported that the Student’s toileting program started in February of 2006. However,
         the staff reported that the Student reacted negatively and would become aggressive while
         participating in the program. No progress was made over a four-month period of continuous
         effort. She stated that she met with the Student’s mother every month to discuss the data and
         any aggressive behavior exhibited. The team decided to discontinue the more proactive
         toileting program and return to the original schedule of four times per day.

  She stated that the six programs were “stop/listen” (responding to the “stop” command), toileting, asking for help,
introducing himself, following two-step directions, and answering social questions.

Case #07.009C

     84. In an interview with one of the complaint investigators, Mr. Collins discussed how the District
         had hired another teacher to work with the Student. He noted that this new teacher had
         extensive experience with autism and would work primarily with the Student.21

     85. In an interview with one of the complaint investigators, Jennifer Raymond, RHMHS case
         manager for the Student, stated that she had been the Student’s case manager for several years
         and was present at PET meetings during the 2004-2005 and 2005-2006 school years. She stated
         that the District decided to have an augmentative communication evaluation performed by
         Mark Hammond sometime at the end of the 2005-2006 school year. By the fall of 2005, the
         evaluation was completed, but the ABLLS evaluation was not. The full evaluation and Mr.
         Hammond’s recommendations were presented at the PET meeting on January 5, 2006. All
         members of the team accepted his findings. They also discussed behavioral issues and the
         implementation of a toileting program. Dr. Chemelski’s name was first mentioned at the
         meeting on January 5, 2006 as someone who could possibly take the Hammond report and
         implement it, as well as someone who could be involved in performing a Functional Behavioral
         Assessment. She recalled Mr. Collins having concerns about Mr. Hammond’s billable rate for
         his work. Ms. Raymond also noted that once she received the minutes of the January 5, 2006
         meeting, she found that the comments about Mr. Hammond’s rate were not included.

     86. Ms. Raymond also stated that she was present at the PET meeting on January 31, 2006. She
         said that Dr. Chemelski was present at that meeting and discussed his role in implementing
         several functional skills programs derived from the ABLLS study. She stated that he believed
         that safety issues were of paramount concern given the Student’s recent aggressive behaviors.
         Toileting was also a priority, according to the consensus of the team.

     87. Ms. Raymond also stated that the team was presented with an FBA and a draft behavior plan by
         Susan Hollinger. Her opinion about the FBA was that it lacked detail and was not based on
         enough data. In her opinion, it was insufficient to formulate an appropriate behavior plan.

     88. Ms. Raymond also reported that she made several visits to the District to observe the Student as
         part of her position as case manager. Her February observations indicated that the staff was not
         following a prompt hierarchy. She indicated that there were many verbal prompts which were
         not part of the program. She reported that in March 2006, she was told by the speech language
         pathologist that the Student had run out of the school and that it was not the first time this had
         happened. She also stated that Ms. Dunn gave her a copy of the modified IEP with no behavior
         plan attached. She also stated that the mother had a meeting with the Superintendent on March
         8, at which time the Mother was given the IEP.

     89. Ms. Raymond stated that upon her review of the IEP, she concluded that the language was
         unclear with respect to how the Student’s progress was being assessed, noting that “clinician
         data” was too vague.

  One of the complaint investigators sent an e-mail to Mr. Collins to inquire about the anticipated start date of the
new teacher, who would be working with the Student during the 2006-2007 academic year. Mr. Collins responded
that he would need a little more information regarding the scope of the investigation under the Maine Regulations.
In addition, he stated that their attorney had advised that actions taken after the complaint must be addressed in a
new complaint or due process proceeding.

Case #07.009C

 90. Ms. Raymond stated that she never observed the prompt hierarchy as Mark Hammond
     explained it needed to be used. She stated that although there had been an agreement to train
     her, she never received any training in how to use the prompt hierarchy with the Student. She
     believed that the prompt hierarchy program was to be used throughout the Student’s entire
     educational program, both at school and at home. Her professional understanding of a prompt
     hierarchy was that it is a very specific method of teaching to be utilized in all settings. She
     stated that it appeared to her that the only systematic prompt hierarchy program that the District
     implemented was in the Positive Behavior Support Plan. That was the only document in which
     it was specifically detailed. She stated that she did not believe that the parents were ever taught
     the step-by-step process of the prompt hierarchy system. Ms. Raymond also stated that she did
     not see PECS being used as it had been during the 2004-2005 school year. She explained that
     this had been used consistently in order to help the Student communicate with the staff. She
     believed that the practice of not using PECS in all areas of learning compromised the Student’s
     ability to express himself and learn. She believed that the District failed to institute these
     functional communication systems for the Student, and that this failure resulted in some of the
     behaviors that he exhibited during the 2005-2006 school year.

 91. Ms. Raymond also stated that she was present at the PET meeting on August 23, 2006, where
     the discussion around placement concerned her. She stated that Mr. Collins was questioning the
     appropriateness of the Crotched Mountain placement, as it was his understanding that the
     Maine Department of Health and Human Services needed to approve such a placement. She
     stated that she contacted DHHS and was told that because the placement was for educational
     purposes, DHHS would not be involved in the decision making.

 92. Ms. Raymond reported that she had observed the Student in September and October 2006. She
     reported that during one of the October visits, she saw the Student being taught by his new
     special education teacher, Ms. Gingras. According to Ms. Raymond, Ms. Gingras appeared to
     be prompting him well; they were in a self-contained setting and it was quiet. Ms. Raymond
     theorized that if he had been in that environment during the 2005-2006 school year, the parents
     would not have complained so strenuously.

 93. In an e-mail to one of the complaint investigators, the Student’s mother stated that the Student
     had begun the 2006-2007 school year in the same room as last year with the same teacher, Ms.
     Dunn. She also noted that, to her knowledge, the Student had been in the new room
     occasionally. She also explained that three of the Student’s educational technicians were the
     same from last year, with the addition of a male educational technician to work with the

 94. The District’s documentation and Maine Department of Education credentials filed for the
     special education teacher and education technicians assigned to the Student during the 2005-
     2006 school year were as follows:

       Frances K. Flanders
       Education Technician, Level 3, K-12, expiration date 02/01/2009
       Continuing Education: Aspergers teaching techniques (2006); Mandt System

       Kimberly Fletcher
       Education Technician, Level 3, K-12, expiration date 2/01/2008
       Continuing Education: Autism Spectrum Disorder (2005); Mandt System

Case #07.009C

       Linda Kittredge
       Education Technician, Level 3, K-12, expiration date 2/01/2008
       Continuing Education: Mandt System

       Nancy Provost
       Teacher, K-8, expiration 7/01/2006
       Continuing Education: Autism Spectrum Disorder (2005); Mandt System

       Susan Dunn
       Teacher, K-12, expiration date 7/01/2008
       Continuing Education: Aspergers teaching techniques (2006); Mandt System; “Why
       Evidence Matters in Teaching Children to Read (2003); “PAAP Reviewing Student Work to
       Set Performance Standards” (2003); “Asbergers Syndrome and Austism Spectrum Disorder”
       (2003); “Clients Rights and Reporting Abuse” (2003); “PAAP” workshop series (2003);
       “Child Management” (2004); “Assessment and Interventions with Individuals with Special
       Needs (2004); “Sexuality Education for Developmentally Delayed Students” (2004); “SAT
       Conference” (2005)

VI. Conclusions

Allegation #1: Failure to provide trained educational technicians. (MSER §5.6) No Violation

MSER §5.6 state the requirements for “Qualified Staff” in special education as follows:

               Any special education or supportive services provided to a student with a
               disability shall be considered as a part of the student’s special education
               program, shall be specified in the student’s I.E.P. and shall be provided by an
               appropriately certified special education teacher or licensed supportive services
               provider. An Educational Technician approved by the Office of Certification of
               the Department may provide special education services when supervised by the
               certified special education teacher responsible for the program.

       The District, in its response to the above allegation, provided documentation in the form of
copies of certificates for each educational technician. All education technicians are authorized as
Educational Technician III, qualified to carry out educational programming without direct
supervision of a special education teacher. All teachers working with the Student also have the
appropriate certifications and are qualified to be assigned to the Student. In addition, although not
necessary, the District has provided documentation regarding additional training received by the
educational technicians. The documentation shows that the educational technicians who work with
the Student have completed, within the past year, a two-day conference focusing on autism

Allegation #2: Failure to implement appropriate programming and provide FAPE. (MSER §§ 1.3,
5.1, 10.3, 10.4, 10.5, 12.3) Violation Found

        The Individuals with Disabilities Education Improvement Act, (IDEA) 2004, 20 USCS §
1400, et seq. and Maine law, 20-A M.R.S.A. Chapters 301 and 303, entitles all school-age students

Case #07.009C

with disabilities to a free appropriate public education (FAPE). Maine Special Education
Regulations, MSER § 1.3, further defines "free appropriate public education" as the following:

               The guarantee of equal educational opportunity entitles each student with a
               disability residing in the state, including students with disabilities who have
               been suspended or expelled, to be provided with a free appropriate public
               education that emphasizes special education and supportive services designed to
               meet their unique needs and prepare them for employment and independent
               living. This education includes special education and supportive services which
               are appropriate to the special needs of the student as defined in an Individualized
               Education Program.

        Furthermore, an “appropriate” education must address the specific child’s “unique needs” in
a way “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. V. Rowley, 458 U.S. 176, 206-07 (1982). Under IDEA, the
implementation of a FAPE is provided through a student’s IEP. See Lenn v. Portland School
Committee, 998 F.2d 1083, 1086 (1st Cir.1993). Therefore, the issue becomes "whether a proposed
IEP is adequate and appropriate for a particular child at a given point in time." Burlington v.
Department of Educ., 736 F.2d 773, 788 (1st Cir.1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85
L.Ed.2d 385 (1985).

         The primary tool for implementing a FAPE under the IDEA is the student's IEP, a written
document detailing the student's current educational level, the short-term and long-term goals of
the educational plan, the specific services to be offered (including transition services), and a set
of objective criteria for subsequent evaluation. 20 U.S.C. §§ 1401(11), 1414; Lenn, 998 F.2d at
1086. The IEP is developed by a team of persons most familiar with the student's needs,
including the student's teachers and parents. Greenbush Sch. Committee v. Mr. and Mrs. K, 949
F. Supp. 934, 938 (D. Me. 1996). "The ultimate question is whether a proposed IEP is adequate
and appropriate for a particular child at a given point in time." Burlington v. Dep't of Educ., 736
F.2d 773, 788 (1st Cir. 1984) (Burlington I), aff'd, 471 U.S. 359, 85 L. Ed. 2d 385, 105 S. Ct.
1996 (1985) (Burlington II). "An IEP is designed as a package." Lenn, 998 F.2d at 1089. It must
target "all of a child's special needs, whether they be academic, physical, emotional, or social."
Id. (citations omitted); See also Roland M., 910 F.2d 983, 992 (1st Cir. 1990) ("purely academic
progress" is not the only indication "of educational benefit"); Timothy W. v. Rochester, N.H. Sch.
Dist., 875 F.2d 954, 970 (1st Cir. 1989), cert. denied, 493 U.S. 983, 107 L. Ed. 2d 520, 110 S.
Ct. 519 (1989) ("education" under the IDEA is broadly defined).

        Rowley instructs that a two-part examination must be used in undertaking a FAPE
analysis. First, it must be determined whether a school district complied with the procedural
requirements of the IDEA. Second, it must be determined whether the IEP, which was the
product of such procedures, is in substantive compliance with the student's needs. Rowley, 458
U.S. at 206-07. Procedural violations will undermine an IEP only if there is "some rational basis
to believe that procedural inadequacies compromised the pupil's right to an appropriate
education, seriously hampered the parents' opportunity to participate in the formulation process,
or caused a deprivation of educational benefits." Roland M., 910 F.2d at 994.

       Issue # 1: Whether the District violated any procedural regulations in developing
       amendments to the Student’s IEP during the 2005-2006 school year.

Case #07.009C

       The first issue that must be addressed under this allegation is whether the District
complied with procedural obligations during the amendment of Student’s IEP.

       A. Failure to implement evaluation recommendations within reasonable time limits.

        MSER § 9.13(D) requires that each school district shall ensure that evaluations are
completed no later than 45 school days after the decision to evaluate, and prior to the PET
meeting scheduled to review the evaluation. MSER § 9.17 requires that an offer of services in
accordance with an IEP is to be made to parents within 45 school days of the district’s receipt of
parental consent to an initial evaluation. There is no correlating regulation that specifies a time
frame in which to offer services based upon recommendations of a reevaluation. The IDEA 2004
and federal regulations are also silent as to the time period within which an offer of services must
be made based upon reevaluations. As such, it is appropriate to conclude that reevaluations and
offers of services need to be completed within a reasonable time. See Rochester Community
Schools, 106 LRP 36957 (Michigan SEA 2006).

        In this case, the PET agreed to have an augmentative communication evaluation
performed at the June 9, 2005 PET meeting. The Student, who has a pervasive inability to
communicate due to a combination of mental retardation and autism, had been unable to
communicate his needs and wants. The PET believed the evaluation was necessary in order to
determine what measures, if any, were needed to help the Student to communicate with others.
During elementary school, the staff learned various forms of teaching techniques, including the
Picture Exchange Communication System (PECS), American Sign Language, (ASL) and other
forms of augmentative communication to help the Student to communicate. However, since the
Student was transitioning into the middle school, the PET agreed that an augmentative
communication system was needed to aid the middle school staff in its endeavor to help the
Student communicate.

        The resulting augmentative communication evaluation, performed by speech pathologist
Mark Hammond, was submitted on October 12, 2005. It concluded that the Student needed
“Systematic Instruction,” which included teaching protocols to help the Student develop his
functional skill base. The targeted skills were to be identified by the District through the
Assessment of Basic Language and Learning Skills (ABLLS). Although the District had not
completed the ABLLS by October 12, 2005, Mr. Hammond explained that once the skills were
identified, step-by-step procedures would be used to teach the skills.

        One skill that Mr. Hammond suggested be included in an ABLLS target skill set was
teaching the Student responses to a “safety request.” Since the Student had a history of task
avoidance and unsafe behaviors, Mr. Hammond recommended that “Systematic Instruction” be
implemented for skills that were necessary for the Student to be safe in his environment. The
“safety request” program would include repetition and practice of requests such as “give it to
me”, “sit down”, “come here”, and “stop.”

        In his report, Mr. Hammond explained that the Student needed “reinforcers” to motivate
his participation in systematic instructional protocols, which should be reduced over time given

Case #07.009C

the success of the Student. He suggested known reinforcers and new ones that would need to be
identified. Mr. Hammond explained that systematic instruction must include a consistent
“prompt hierarchy” that would delineate steps to be taken in the event the Student was not
successful on task. He stated that the prompt hierarchy could run through essentially all of the
Student’s activities to establish consistency in his program. He also recommended that various
other forms of augmentative communication techniques be used to help the staff and the Student
communicate with each other. For example, visual supports, such as PECS, sentence strips
showing his daily schedule, and picture display books, were recommended.

        The Hammond evaluation was received with praise at the PET meeting on November 15,
2005. The team acknowledged that the ABLLS had not been completed, but that target skills
were emerging. Mr. Hammond stressed that, when implementing systematic instruction, which
included a prompt hierarchy, it was imperative that the same prompt commands were
consistently used at school and at home. He stated that visual prompts should be used over verbal
prompts and explained that all prompts should be “faded” over time to reduce dependency on
them. Based on the discussion of the evaluation, the team agreed that the Student’s IEP would be
changed to reflect the target skills that would be identified in the ABBLS study.

         The PET met on January 5, 2006 to discuss the ABBLS results and determine the next
steps in implementing the Hammond recommendations. During the discussion with the team,
Mark Hammond reemphasized the importance of using consistent prompt commands. He stressed
that the staff and parents needed to be consistent on which protocols were used and how they were
implemented, and that they should be used in all of the Student’s learning. He also stated that a visual
schedule for the Student to use was “a must.” He explained the “basic rules” in using prompts, such
as using five second delays between each prompt. Lew Collins, Special Education Director, stated
that the use of prompt hierarchies should be reflected in the Student’s IEP. In addition to suggesting
the use of PECS, Mark Hammond also explained to the team the importance of using a simple data
recording system to track the Student’s progress. Lew Collins also added that this “systematic
instruction” allows for charting.

        The PET also discussed whether to continue the employment of Mr. Hammond due to the
District’s financial concerns. Lew Collins, Special Education Director, stated that another provider,
Dr. Bruce Chemelski, could be engaged to continue the work of implementing the Hammond

       During January 2006, the District engaged Dr. Chemelski. He began to review the
Hammond recommendations and the Student’s overall programming. On January 31, 2006, Dr.
Chemelski was introduced to the PET. He explained to the team that he had yet to review the
ABLLS study or develop teaching protocols. He stated that two immediate needs, as expressed
by the District, were programs designed to address safety concerns related to the Student’s
aggressive behavior, and the intensive toileting schedule, which had already been put into place
by the District. He stated that once he had reviewed the ABLLS study, he believed that the
Student’s programming should focus on six skill areas at a time to avoid overwhelming the
Student. The PET, including the parents, agreed to this course. No deadlines were set for Dr.
Chemelski to submit his final program to the PET, although he stated that he would submit a
program within a few weeks. Two six-hour training sessions for staff, with additional two hour
sessions over two months, and a home training session for parents were agreed upon.

Case #07.009C

        No action was taken regarding the Hammond evaluation until after January 31, 2006.
Although the PET agreed that the Hammond recommendations would be implemented, an IEP
was not prepared and signed by the Special Education Director until March 3, 2006. More than
45 school day had passed between June 9, 2005, when the decision was made to perform and
augmentative evaluation, and November 11, 2005, when the PET reviewed the evaluation. By
the time the IEP was signed by the Special Education Director on March 3, 2006, the date that an
offer of services was officially made, more than 100 school days had passed since the decision to
perform the evaluation was made. (Whether the IEP was appropriate is discussed below.) The
impact created by this serious delay was the loss of programming for a significant part of the
2005-2006 school year.

          B. Procedural violations in developing the Student’s IEP after January 31, 2006

         As stated above, the Student’s IEP was amended after the January 31, 2006 meeting, but
prior to Dr. Chemelski’s submission of his written ABA Program Summary in April 2006. It was
not until the ABA Program Summary was submitted that the six targeted skill areas, called
“programs” were clearly identified. In addition to the Safety and Toileting programs, which were
clear priorities expressed by the PET, the ABA Program Summary included four other programs:
Self Introduction, Asking for Help, Material Usage, and Following Two Step Directions. Only
the Safety and Toileting program were specifically delineated in the prematurely amended IEP. It
would have been impossible for the District to have drafted the IEP without knowing what the
other four programs were and what specific protocols were needed prior to reviewing the ABA
Program Summary. In comparing the amended IEP with the specific programs outlined in the
ABA Program, the language of the amended IEP could not be readily understood as a document
that was based upon anything agreed upon by the PET, except for the two programs upon which
it had already agreed. Only after a detailed interview with the Special Education teacher, Susan
Dunn, could some of the IEP objectives be vaguely associated with the ABA Program Summary.
For example, there was little language that referred to the Self Introduction program, except for
the objective of “correctly identifying himself to others.” Also, no protocols or prompt
hierarchies were included in the IEP, except in the Behavior Plan. The six programs were so
specifically drafted in the ABA Program Summary that it is difficult to imagine that the District
had prior knowledge of them before it was submitted

        The District’s failure to draft an IEP that was based upon specific programming was due
to the untimely submission of Dr. Chemelski’s ABA Program Summary. By the time the
Program Summary was issued, the IEP was in place and staff was using it. The PET was never
convened after the Program Summary was submitted to review the document or amend the IEP.
Since the amended IEP did not reflect the programming specifically discussed in the ABA
Program Summary, the Student was failing to receive any benefit from it. The District was
operating in a vacuum without the guidance of Dr. Chemelski’s Program Summary.

        Evidence that the Student’s education progress was affected by this vacuum was
reflected, not only by his increasingly aggressive and violent behaviors, but also in the District’s
IEP progress notes made in June 2006. They indicated that the Student made inadequate progress

Case #07.009C

in objectives vaguely related to the ABA Plan. The Toileting program was a failure and had to be
stopped prior to the end of school. Inadequate progress was noted in the “STOP” command
objective, one of the PET’s priority issues. Other areas in which the Student failed to make
adequate progress included the behavior goal and various functional skills, such as spreading a
substance with a knife, and taking off and putting on his shirt, which were amended in the IEP
after January 31, 2006.

                          C. Failure to provide prior written notice. MSER §§ 10.4, 12.11

        The parents were never provided with prior written notice of any changes that were made
in the IEP after January 2006, a violation of MSER §§ 10.4 and 12.11. No PET was scheduled
once Dr. Chemelski’s Program Summary was submitted in April 2006 in order to review it and
amend the IEP in a way that would support the new programming, a violation of MSER § 8.3.
Also, the parents were not provided with Dr. Chemelski’s ABA Program Summary until after the
school year had ended, and therefore, were uninformed about the other four programs and the
protocols required to implement them, violating MSER § 8.5. In fact, the lack of communication
between the parents and the Special Education Director and staff had deteriorated so badly that
the parents resorted to addressing their concerns and complaints to the District’s superintendent.
Failure to communicate the District’s termination of ESY music therapy was also a violation of
the District’s responsibility to convene a PET before implementing a change of programming.
These numerous missteps amount to an overall failure to include the parents in the decision
making process, clearly violating MSER § 8.11.
        These significant procedural flaws in amending the Student’s IEP before sound
programming was submitted, rose to the level of substantively impacting the Student’s academic
progress, thus depriving him of educational benefit.

Issue # 2: Failure to provide FAPE by not following an appropriate behavior intervention plan.
(MSER §§ 1.3, 8.3) 22 VIOLATON FOUND

        Part of the determination of whether the District implemented appropriate programming for
the Student is analyzing whether the PET addressed the Student’s behavioral issues appropriately.
The PET is responsible for addressing behaviors that impede a student’s learning or that of others.
MSER § 10.3(D). It must consider the use of strategies, including positive behavioral interventions,
and supports to address such behavior. Positive behavior intervention is defined as, "... an
intervention system individually designed by the PET to assist a student to acquire educationally and
socially appropriate behaviors and to reduce patterns of dangerous, destructive, disruptive or defiant
behaviors." MSER § 2.15. These interventions are based upon the results of a functional behavior
assessment (FBA). A primary goal of positive behavior supports and interventions is to teach
educationally and socially appropriate behavior as a replacement for problematic behaviors. Id.

      During the fall of 2005, the Student began exhibiting aggressive behavior. In a letter to the
District, dated August, 15, 2005, the Student’s Pediatric Neurologist, Wendy Stewart, explained that
the Student was developing a tendency to pinch, yell and kick. She expressed a concern that these
behaviors would continue to escalate without “intensive intervention.” By December 2005 and
January 2006, the Student was becoming physically aggressive with District staff.

     Noted as Allegation 4 in the letter of draft allegations.

Case #07.009C

      The PET agreed to conduct an FBA at the January 5, 2006 PET meeting. It was also pointed
out by Mark Hammond that, due to the Student’s inability to communicate, his frustration level was
piqued and expressed by physical conduct. He believed that, by implementing consistent
augmentative communication systems in the Student’s programming, such as a prompt hierarchy, the
level of frustration would diminish as the Student found more appropriate ways to communicate.

       By the PET meeting on January 31, 2006, the FBA and a draft behavior plan were
presented. The parents became upset because they believed that the plan was drafted hastily and
did not address the Student’s specific needs. Dr. Chemelski echoed Mark Hammond’s opinion
that, once proper protocols and other forms of augmentative communication techniques were in
place, the Student’s level of behavioral outbursts would subside. However, Susan Dunn stated to
the complaint investigator that the draft behavior plan was not used due to the parents’

      Thereafter, the District developed a “Positive Behavior Support Plan,” (Behavior Plan),
dated 2/2/2006. The document was a fill-in-the blank form that addressed “target behaviors”
defined as “specific behaviors that are interfering with academic/social performance.” The
Student’s target behavior was described as “aggression in the form of hitting, pinching self and
others, kicking, squeezing.” The Behavior Plan described a four-step prompt hierarchy to be
followed by staff when the Student exhibited the target behavior. The four steps of the prompt
hierarchy were: (1) gestures — pointing, physical gesture to direct by staff; (2) verbal — verbal
cues to discontinue behavior, i.e. “Stop”; (3) light physical —a light touch to redirect; (4)
physical — physical guidance or hand over hand prompt to redirect. Consequences immediately
following the occurrence of the target behavior included: (1) “follow above hierarchy”; (2) “may
not return to chosen activity/engage with chosen object”; and (3) “rewards” to encourage the
absence of the target behavior, including “praise for engaging in requested task per incident” and
“choice of task given as appropriate.” In addition, a behavior goal was added to the amended

       There is no dispute that the Student’s behavior deteriorated over the spring of 2006. At least six
instances of physical aggression were reported or observed. Although the Behavior Plan was used in
some cases, nothing appeared to diminish the level of aggression exhibited by the Student. On April
29, May 8, May 16 and 17, May 24, and June 13, 2006, the Student engaged in some form of
physical aggression. On two occasions, May 8 and May 23, 2006, he had to be physically restrained
despite attempts to prompt the Student to stop his behavior. Some staff members reported bruises. On
at least two occasions, the teacher or educational technician had to remove herself from the situation
in order to avoid being injured.

         The augmentative communication techniques specifically described by Mark Hammond were
never properly implemented; those techniques may have reduced the Student’s level of aggressive
conduct. The techniques had worked in the elementary school, and were part of the Student’s IEP
during that period. The only protocol that was used was the prompt hierarchy, which was in the
Behavior Plan. There is no evidence that it was being used across his educational programming. In
fact, Jennifer Raymond reported that she was concerned that prompts were not being used as they
had been during elementary school. Education technicians, who were instructed to limit their
interviews with one of the complaint investigators to 10 minutes, could not remember what Dr.

Case #07.009C

Chemelski’s training included. Their understanding of the use of a prompt hierarchy was in relation
to the Behavior Plan.

It is apparent that the Behavior Plan did not help the Student improve his aggressive behavior. In
effect, the Behavior Plan was a reactionary tool used to protect the Student and others from
potential injury. The District failed to design a behavior plan that addressed not only the triggers
of the Student’s aggression, but also the communication problems which fueled his frustration
level and subsequent aggressive behavior. The District failed to appropriately address the Student’s
aggressive and dangerous behaviors.

Allegation #3: Failure to provide appropriate classroom placement and allowable student-teacher
ratio. (MSER §§ 1.3, 5.5(D), 11.6) Violation Found

       MSER §11.6 stipulates, “A Self-Contained Class Placement is a placement where a
student with a disability receives special education and supportive services OUTSIDE THE
REGULAR CLASSROOM for more than 60 percent of the school day in a self-contained
program. This may include students with disabilities placed in self-contained special classrooms
with part-time instruction in a regular class, or self-contained special classrooms full-time. Self-
contained classes must be located in chronologically age appropriate settings and the facilities
must be comparable to those in which regular education is provided to regular education

         The Student received special education in a “special” education setting 82 percent of the
school day, according to the IEP. This is considered a “self-contained” setting under the above
definition. MSER § 5.5(D) requires that classes between the ages of 10 and 13 have a student-teacher
ratio of 8:1, with an extra five students allowed if on or more education technicians are also present.
Therefore, no more than 13 students are allowed in a self contained setting even if there is more than
one educational technician present. Since there were more than 15 students in the self-contained
classroom in which the Student was placed, according to Susan Dunn and the minutes from the PET
meeting on July 11, 2006, the District violated MSER § 5.5(D).

         Also, there was no dispute that Student’s classroom was chaotic and that he was easily
distracted by his peers. When Ms. Raymond mentioned to Ms. Dunn, the classroom teacher, that the
Student was being distracted by his peers, Ms. Dunn noted that the classroom’s design made it
difficult to separate students. The large room included a kitchen, as well as a washer and dryer, in the
same room, with no dividers. Therefore, when cooking or other activities were being conducted in
the classroom, the Student would inevitably become distracted, as acknowledged by the Student’s
special education teacher. The District’s Special Education Director acknowledged the inadequacy of
the classroom space by stating to one of the complaint investigators that the Student would be in a
“less distracting classroom” for the 2006-2007 academic year.

        The District deprived the Student of a FAPE by placing the Student in an over-stimulating
classroom. Due to the Student’s significant cognitive impairments, the 2005-2006 classroom
placement exacerbated the deteriorating circumstances under which the Student was being educated.
The Student should have been placed in a self-contained environment which was quiet, less crowded,
and more conducive to his learning process.

Case #07.009C

Ancillary Issue # 1: Failure to respond to the parent’s request that the SAU amend or attach
comments to the minutes from the PET meeting on January 5, 2006. (MSER §15.8)

       MSER § 8.9 states that any dissenting opinions may be included in or attached to PET
minutes. MSER § 15.8 states the following:
        A. Request to amend records - A parent may request a school to amend
        education records that the parent believes to be inaccurate, misleading or
        in violation of the privacy or other rights of a student. The school shall,
        within 15 days of receipt of the request, either amend the information in
        accordance with the parent's request or inform the parents of its refusal to
        amend the information and advise the parent of the opportunity for a
        B. Opportunity for a hearing - The school shall, on request, provide a
        hearing in which the parent may challenge information in education
        records. The hearing shall be conducted according to the procedures
        specified in the regulations implementing the Family Educational Rights
        and Privacy Act of 1974.
See also the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, 34 CFR
Part 99. If, as a result of the hearing, the institution still decides not to amend the record, the
parent has the right to insert a statement in the record setting forth his or her views. That
statement must remain with the record for as long as the record is maintained. MSER § 15.8(C).
See, Letter re: Philadelphia School District, Family Policy Compliance Office, 105 LRP 25837
(February 7, 2005). PET minutes become part of the student’s cumulative educational record.
MSER § 8.9.

        At the conclusion of the PET meeting on January 5, 2006, the District’s Special
Education Director raised doubts about the District’s ability to fund Mr. Hammond’s continued
consultation. He stated that the District had hired a child psychologist, Dr. Bruce Chemelski,
who would be able to implement the recommendations, along with other staff members. After
reviewing the minutes, the Student’s parents requested in writing that the District amend the
minutes to include Mr. Collins’ comments about funding difficulties regarding the continued
employment of Mr. Hammond. The District never replied to the request, a violation of MSER §
15.8 (A).

        Summary of Conclusions

        The IDEA does not promise perfect solutions to the vexing problems posed by the existence
of learning disabilities in children and adolescents, but the modest goals that it does set out are
required. It emphasizes an appropriate, rather than an ideal, education; it requires an adequate, rather
than an optimal, IEP. Appropriateness and adequacy are terms of moderation. It follows that an IEP
must afford some educational benefit, though it need not maximize the child's potential. Lenn, 998
F.2d at 1086; see also Rowley, 458 U.S. at 198, 102 S.Ct. at 3046-47; see also Roland M., 910 F.2d
at 992. The significant procedural and substantive violations in developing the Student’s IEP after
January 31, 2006, including significant delays in submitting the ABA Program Summary, the
implementation of an IEP which lacked specificity with respect to the ABA programming, the failure

Case #07.009C

to design an appropriate behavior plan, the failure to address the Student’s inappropriate classroom
placement, the lack of prior notification to the parents, and the failure to convene at PET after the
Program Summary was submitted, deprived the Student of appropriate educational benefits, and
denied the Student a FAPE between January 31, 2006 and June 2006.

VII. Corrective Action Plan

         A. The Student’s parents suggest that MCMS is an inappropriate placement for the Student.
In a letter from the mother to the complaint investigators, dated August 9, 2006, she stated, “In short,
if [the Student] is ever to realize his full potential, he must be placed in a system totally devoted to
his educational needs.” Although it is understood that the parents’ desire is to realize the full
potential of the Student’s abilities, the legal standard is whether the Student’s programming is
“appropriate” and addresses the specific child’s “unique needs” in a way “reasonably calculated to
enable the child to receive educational benefits.” Rowley. Also, the IDEA articulates a preference for
mainstreaming disabled students. Lenn, 998 F.2d at 1086; see also 20 U.S.C. § 1412(5) (requiring
states to educate handicapped and non-handicapped children together "to the maximum extent
appropriate"). Furthermore, "parental preference alone cannot be the basis for compelling a school
district to provide a certain educational plan for a handicapped child." Brougham v. Town of
Yarmouth, 823 F. Supp, 9 (D. ME 1993). However, when the least restrictive environment of a local
placement has not afforded a student with moderate educational benefits required under the IDEA, it
is appropriate to educate the student in an out-of-district placement.

         During the spring of the 2005-2006 school year, the PET discussed the possibility of
transferring the Student to an out-of-district placement. The District supported the idea and even
encouraged research on the subject. The Special Education Director acknowledged that an out-of-
district placement was a reasonable alternative, given the circumstances apparent within the
Student’s programming, and stated that he himself would be contacting the Margaret Murphy
Center for Children in Auburn, Maine. He later reported to the parents that the Center had a year-
long waiting list. The parents visited the Margaret Murphy Center and the Merrymeeting Center for
Child Development in Bath, Maine. Although they preferred Merrymeeting, the institution informed
them that, due to concerns with the Student’s age and high level of need, they did not have an
appropriate program for him. The Parents also visited Crotched Mountain School in New Hampshire,
a residential facility that showed promise in accommodating the needs of the Student.

        By August 2006, given that no out-of-District placements were available, the District and the
parents disagreed on the course of action to be taken. The District had doubts that Crotched Mountain
was legally appropriate and suggested that the Department of Health and Human Services be
contacted to determine whether and how it could be funded. In the meantime, the PET, without the
agreement of the parents, decided to hire a full time special education teacher and a male educational
technician, both to be dedicated to the Student. The District also arranged for a smaller, separate
room to be available for the Student’s use. The accommodations that the District brought to the table
at the PET meeting in August 2006 represented a drastic step on the part of the District to provide the
Student with the appropriate programming.

        The Student has started the 2006-2007 school year in the new classroom with the new staff.
He is there 80 percent of his school day. The other 20 percent is taken up with social function skill

Case #07.009C

development in the other special education classroom. Jennifer Raymond reported that it appeared
the Student was calmer and much more focused in the new classroom with the new staff. She stated
to the complaint investigator that she was more confident of the Student’s success than she had been
during the 2005-2006 school year. However, three CIRs from the new school year were submitted to
the complaint investigator. On September 15, 2006, a CIR reported that the Student pushed a peer,
and then hit and pinched a teacher during an advisee period. He was then instructed to go to Susan
Dunn’s room and was told to sit at a table. On September 21, 2006, it was reported in another CIR
that the Student hit and pinched both a peer and his teacher. He was told to leave the room by his
teacher, Ms. Gingras, and then was directed to go to the bathroom. On September 26, 2006, a CIR
stated that during lunch, the Student reached over and pinched his teacher and threw a granola bar
across the table. He then began to pinch himself. He was then redirected to eat his lunch. The teacher
reported being bruised during the incident. The mother reported an incident when the Student hit his
new male education technician.

         Although the District has attempted to correct the inadequacies in the Student’s 2005-2006
programming, its efforts do not compensate for the violations of regulations and failure to provide a
FAPE. In light of the District’s failure to provide the Student with FAPE and the continued
aggressive behavioral issues exhibited by the Student, representing both a danger to himself and
others, the District shall provide the Student with an out-of-district placement at Providence’s
Merrymeeting Center (Merrymeeting) for the 2006-2007 school year, including the summer of

        The District shall convene a PET meeting in April 2007 to discuss and determine whether the
Student made progress at Merrymeeting, and whether the District can provide an appropriate
education at the MCMS during the 2007-2008 school year, which would allow him to be reintegrated
into the District. If the PET is satisfied that the District is able to provide an appropriate education
for the Student, then he may be reintegrated into the District for the 2007-2008 school year.

        The District shall provide documentation that an out-of-district placement has taken place by
January 2, 2007. Copies of all documentation shall be sent to the DOE Due Process office, the
parents and the complaint investigators.

        B. Corrective Action Plan for the Ancillary Issue:

        The District must inform the parents in writing no later than fifteen calendar days after
the receipt of this report, whether it intends to amend the January 31, 2006 minutes to reflect the
comments made regarding the employment of Mark Hammond.

        The District shall send copies of its response letter to the parents, the Due Process Office
and the complaint investigators. If the District consents to amend the PET minutes, it must also
send a copy of the amended minutes to the Due Process Office and the complaint investigators.

  Merrymeeting has informed the parties that they now have appropriate programming available for the Student.
The former name of Merrymeeting was the Merrymeeting Center for Child Development.

Case #07.009C

        The District shall send to all MCMS special education staff and the MCMS school
administrators a memorandum regarding the District’s obligations under MSER §15.8. A copy
of the memo, a list of the names and job titles of all MCMS special education staff and school
administrators to whom the memorandum was sent shall be forwarded to the Due Process Office,
the complaint investigators, and the parents.


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