Complaint Investigation Report by dT64XL6W

VIEWS: 2 PAGES: 25

									                             Complaint Investigation Report
                                 Parent v. Lewiston
                                     June 6, 2007

Complaint # 07.083C
Complaint Investigators: David Webb and Sheila Mayberry
Date of Appointment: February 22, 2007

I. Identifying Information

Complainant: Parent
             Address
             City

Respondent:   Leon Levesque
              Superintendent
              36 Oak St.
              Lewiston ME 04240

Special Education Director: Melvin Curtis


Student: Student
         DOB xx/xx/xxxx


II. Summary of Complaint Investigation Activities

       On February 20, 2007, the Maine Department of Education received this
complaint. The complaint investigators were appointed on February 22, 2007. The
complaint investigators received 165 pages of documents from the respondents and 25
pages of documents from the parent. Interviews were conducted with the following
people: John Jones, Special Education Coordinator, Lewiston Public Schools; K.C.
Macarthur, Assistant Program Director, The Spurwink School, South. Portland; Ms.
Adams Adam and Ms. Duval, Special Education Teachers, Lewiston Public Schools;
Tiffany Haskell, Assistant Director of the Margaret Murphy Center for Children in
Auburn; Davan Claussen, Lead Teacher, The Spurwink School; Chris Simonds, Spring
Harbor Hospital; and Lora Perry, Director of the Merrymeeting Center in Bath.

       Mediation in this case was originally scheduled for March 9, 2007, and then
continued to March 13, 2007. On the District’s request, the Complaint investigators
granted an extension of the document due date to March 19, 2007 to allow for the parties
to explore resolution in the mediation process. Ultimately, the Parent withdrew his
request for mediation on March 13, and requested that the case move forward on the
complaint investigation.




                                                                                       1
        Communication with the parent was very difficult. Despite numerous calls and e-
mail messages left by the complaint investigators, only a brief phone conversation was
held with the Student’s father on March 27, 2007. The Parent did not provide releases to
communicate with health care providers; therefore the complaint investigators were
unable to communicate with the Student’s health care providers, including Spring Harbor
Hospital staff, Dr. Carol Hubbard, and Merrymeeting Behavioral Health. The complaint
investigators were able to obtain a written report from Dr. Hubbard, however, and to
discuss with the staff at Spring Harbor Hospital general policies and procedures regarding
care and treatment of patients with disabilities similar to the Student in this case.

       The complaint investigators determined that a complaint investigation meeting
was not necessary.

III.    Preliminary Statement

       The Student is xx years old and currently attends the Spurwink School in
Portland, pursuant to a determination made at a PET meeting convened on January 8,
2007. He receives special education services under the exceptionality of Autism. He has
also been diagnosed with severe Mental Retardation. This complaint was filed by the
Student’s father alleging that the District violated the Maine Special Education
Regulations (“MSER”) in a number of ways set forth below.

IV.    Allegations

             1. Failure to provide a free appropriate public education in violation of
                Maine Special Education Regulation § 1.3;
             2. Failure to implement an Individualized Education Program (IEP)
                in violation of Maine Special Education Regulation §10.5;
             3. Failure to provide notification to the parents of a significant alteration of
                an IEP in violation of Maine Special Education Regulation 10.4;
             4. Failure to implement an IEP for a Student transferred from another
                service provider in violation of Maine Special Education Regulation
                §10.9;
             5. Failure to provide qualified staff in violation of Maine Special Education
                Regulation § 5.6;
             6. Failure to properly conduct a PET meeting in violation of Maine Special
                Education Regulation § 8.3.

V.     Ancillary Issues

             1. Failure to determine whether the District was responsible for providing
                specific in-home supportive services in the Student’s IEP. MSER §§
                6.1, 10.2 (C),(D), 10.3.




                                                                                           2
          2. Failure to maintain the Student’s record of special education and
             supportive services, thereby failing to ensure compliance with the
             Chapter 101 MSER.

VI.   Summary of Findings

          1. The Student is xx years old and lives in Lewiston, Maine with his father,
             his stepmother and his stepbrother, who is also disabled. The Student
             has been diagnosed with Autism and severe Mental Retardation.

          2. Pursuant to a PET meeting on September 4, 2002, the Student was
             transitioned from Child Development Services to the Auburn School
             Department and identified as eligible for special education services. The
             Student was placed at the Margaret Murphy Center for Children in
             Auburn, a specialized, out-of-district placement for children with
             developmental disabilities. The Student has never attended public
             school and has always been in an out-of-district placement based on the
             severity of his disabilities. Although the Student was initially provided
             education and support services through the Auburn School Department,
             special education services were transferred to the Lewiston School
             Department when the Student’s family moved to Lewiston in April,
             2004.

          3. A PET meeting was held on April 15, 2004, to transfer educational
               programming from the Auburn School Department to the Lewiston
               School Department. The PET determined that:
             i. the Student would continue programming at the Margaret Murphy
                 Center for Children with “revised IEP goals and objectives”;
            ii. the Margaret Murphy Center for Children would continue to provide
                 2:1 staffing;
           iii. Occupational and Physical Therapy evaluations would be conducted;
           iv. the Student would participate in ESY services to maintain skills and
                 prevent regression; and
            v. a PET would be reconvened upon the completion of the Occupational
                 and Physical Therapy evaluations, with a tentative review date of June
                 30, 2004.

          4. An IEP, dated April 15, 2004, provided as follows:
             i. 30 hours per week of direct instructional service (year round service);
            ii. 60 minutes per week of Speech consultation;
           iii. 30 hours per week with a Ed Tech. III;
           iv. Extended School Year Service with a Special Education Teacher, 5
                days per week, 8:30 a.m. to 5:30 p.m..
            The IEP identified the Student’s need for intensive behavioral therapy, and
            attached a behavioral intervention plan, along with goals and objectives




                                                                                      3
 and an Individualized Education Objectives plan for the Student. An IEP
 reevaluation date was set for December 2, 2006.

5. A PET meeting and annual review was held on January 4, 2005. In this
     meeting, it was noted that the Student’s academic progress “has been
     slow, even with 2:1 staffing” and that “his behavior is difficult to
     manage and requires 2 people. One person manages, keeps data and
     gets materials ready, while the other instructs.” The PET minutes also
     reflect that the Student “continues to need a highly structured and
     specialized program throughout the year in order to maintain skills and
     make progress.” The January 4, 2005 PET minutes further determined:
   i. to add an Occupational Therapy consultation for 90 minutes per month
       to the Student’s IEP;
  ii. to continue attendance at the Margaret Murphy Center for Children for
       35 hours per week;
 iii. to provide a Speech and Language consultation for 60 minutes per
       week;
 iv. provide ESY services for the summer of 2005 of 35 hours per week for
       9 weeks; and
  v. to assign a full time Education Technician to the Student.

6. There is no record of any amended IEP following the January 4, 2005
   PET meeting. A PET meeting was held on December 1, 2005, which
   was postponed to December 15, 2005, due to the illness of the Student’s
   parents. The December 15, 2005 PET meeting reflected that “the
   Student has demonstrated an increase in aggression and oppositional
   behaviors…vomiting has also increased recently both at home and at
   school.” The PET minutes indicated the “complexity of the Student’s
   medical status” and “that the parents would be meeting with Dr.
   Hubbard for a follow-up medical examination on December 21, 2005.”
   The determinations of the PET meeting included: “(The Student) would
   continue his program at the Margaret Murphy Center for Children.

7. Pursuant to an IEP developed on December 15, 2005, the Student was to
   receive the following weekly educational and supportive services: 34
   hours of direct instructional service, 35 hours of 1:1 educational support
   from an Educational Technician, 15 minutes of Occupational Therapy
   consultation and 1 hour of Speech and Language consultation. A
   detailed IEP goals and objectives plan, Occupational Therapy
   consultation and Positive Behavioral Support Plan were attached to the
   IEP.

8. An Internal Team meeting was convened at the Margaret Murphy Center
   for Children on February 22, 2006. Present at the meeting were MMCC
   staff Tiffany Haskell, Becky Beckwith-Hebert, Paul Johnson, Michelle




                                                                            4
   Hathaway and Jenny Lowell. The minutes of this meeting stated, in
   relevant part, as follows:

         The team is concerned that the Student’s medical needs are
         interfering with his access to an appropriate education…The Team
         feels the Student’s medical needs/issues have increased over the
         last three years while attending MMCC…The Team feels the
         Student needs medical, behavioral and educational experts on-site
         in order to benefit from his education.

9. On March 1, 2006, a team meeting was convened at the Margaret
   Murphy Center for Children. This was not described as an official PET
   meeting. Present at the meeting were the Student’s parents and
   Margaret Murphy Center for Children staff Tiffany Haskell, Becky
   Beckwith-Hebert and Jenny Lowell. The team meeting minutes
   referenced the February 22, 2006 meeting, and stated, in relevant part, as
   follows:

         The Student exhibits significantly high impulsivity
         as well as high rates of physically aggressive
         behavior. Even given his comprehensive
         educational and behavioral program including
         systematic instruction by two teachers across all
         activities of the school day and outpatient
         medication management, he continues to engage in
         high rates of aggressive and impulsive behaviors
         that significantly interfere with his learning. The
         Student has missed nearly 30 days of school due to
         medical reasons. He has consistently made very
         slow progress across all domains with some
         progress in functional communication.

   The March 1, 2006 minutes also requested a PET meeting and referral to
   Spring Harbor Hospital for inpatient programming.

10. In an interview with the complaint investigators, Tiffany Haskell,
    Assistant Director of the Margaret Murphy Center for Children in
    Auburn, stated that the Student was discharged from the Margaret
    Murphy Center for Children on March 22, 2006, as his needs were
    greater than available staff and programming could provide. Ms.
    Haskell added that the Student was the most difficult and challenging
    child she had worked with in her 14 years at the Margaret Murphy
    Center for Children.

11. A PET meeting was convened on March 22, 2006, to review the
    Student’s program and future attendance at Spring Harbor Youth



                                                                            5
                  Developmental Disorder Treatment Program in Westbrook, Maine. The
                  PET minutes reported on the Student’s vomiting. Dr. Intaglio’s findings
                  reported to the PET stated that it was not due to a medical condition. It
                  was also reported that the Student was working on “level 1” of his
                  PECS1 program at the Margaret Murphy Center for Children, which he
                  was attending for 5.25 hours per day. The PET determined that the
                  Student would receive services at Spring Harbor “with his current IEP
                  adjusted for direct service level.” His discharge from the Margaret
                  Murphy Center for Children was immediate. The PET agreed to convene
                  within 45 days.

              12. The Prior Written Notice (PWN), dated March 22, 2006, discussed the
                  Student’s placement at Spring Harbor Hospital and provided that the
                  Student “will receive 5 hours of specialized daily instruction with his
                  current IEP.” The notice also indicated that, “Continuing (the
                  Student’s) placement at Margaret Murphy Center for Children was
                  considered but rejected at (sic) the staff does not feel that they can
                  currently program successfully for (the Student).”

              13. A subsequent PET meeting was convened on June 8, 2006, 50 days after
                  the March 22, 2006 PET meeting. At this meeting it was noted that the
                  Student’s vomiting and aggression had “diminished considerably” and
                  that the “behavioral plan appears to be working well…”and “progress
                  has been noted in all academic areas.” In particular, it was noted that
                  the PECS method was “effective” for the Student. At this meeting it
                  was noted that the Student would not be discharged from the Spring
                  Harbor program “until sufficient in-home supports have been secured”
                  and that “in-home services are currently pending at this time.” It was
                  also noted that a meeting would be held on June 13, 2006, with
                  Children’s Behavioral Health Services to discuss funding support for
                  behavioral consultation. The June 8, 2006 PET determinations
                  included:
                          i.    Specialized instruction continuing at the Spring Harbor
                                Developmental Disability/Autism program for 5 hours per
                                day;
                         ii.    Extended school year services during the summer of 2006
                                for 5 hours per day;
                        iii.    Occupational Therapy Services for one hour per week;
                        iv.     Speech and Language services for 2 hours per week, and
                         v.     Speech and Language goals and objectives to be revised
                                and added to his IEP.

              14. The PWN, dated June 8, 2006, confirmed the June 8, 2006 PET
                  determinations, and added “new information should be integrated into a

1
 Picture Exchange Communication System. An augmentative communication system used to help the
Student develop communication skills.


                                                                                                6
                    new behavior plan that will assist with educational programming.”
                    Additionally, the notice stated that “(The Student) will be discharged
                    from Spring Harbor to his parent’s care once appropriate in-home
                    support services have been secured. (The Student’s) educational needs
                    are significant and require extensive resources.”2

               15. The Student’s IEP developed from the June 8, 2006 PET meeting,
                   determined that his ongoing treatment at Spring Harbor would remain at
                   five hours of specialized daily instruction, and that he would not be
                   discharged until sufficient in-home supports have been secured.3 The
                   revised IEP provided for one additional hour of Occupational Therapy
                   services and two hours of Speech and Language Therapy services per
                   week. In addition, it provided for extended school year services of five
                   hours per day. Attached to the June 8, 2006 IEP were several documents
                   from the Margaret Murphy Center for Children, including a 3-page
                   “Initial Behavior Treatment Plan,” dated May 6, 2006; a five page “IEP
                   Goals and Objectives” plan, dated December 2005; a two page “OT
                   consultation report;” and a four-page “Positive Behavioral Support Plan”
                   (PBSB), dated December 2005. The attached PBSB indicated that the
                   Student required:
                          i.     An environment that is quiet and free from
                                 high rates of auditory or visual distraction;
                         ii.     VERY consistent teaching strategies
                                 (Emphasis supplied);
                        iii.     A Differential Reinforcement of Appropriate
                                 Behavior (DRA) program to provide the
                                 Student with “opportunities to practice; and,
                                 refine adaptive behavior designed to replace
                                 interfering behavior.”

               16. A PET meeting was held on September 18, 2006, at which the Parent
                   was present by telephone, to “review (the Student’s) program and
                   consider placement for (the Student.”) Minutes from the meeting
                   indicated that the parents “would like to have (the Student) home.” The
                   minutes also noted that Lee D’Attilio, a Spring Harbor Hospital social
                   worker, was not optimistic about finding in-home supports for the
                   Student. Lora Perry, from the Merrymeeting Center in Bath, (a possible
                   day treatment program for the Student), stated that although “(the
                   Student) presents with difficult behaviors,” the Center was “in the
                   process of hiring staff and it appears that October would be a likely
                   starting point.” Mina Matthews, from Tri-County Mental Health
                   Services was also at the PET meeting. She reported to the PET that the

2
  The complaint investigators were not able, due to the lack of a release, to obtain more information on the
in-home supports that were contemplated or provided to the Student
            3
              The June 8, 2006 IEP was not sent to the parents until September 14, 2006.



                                                                                                               7
   state had interviewed in-home providers and that the Student was
   eligible for 26 hours per week. The minutes reflected that “(The
   Student’s) discharge from Spring Harbor is imminent but is contingent
   upon parent’s wishes.” The PET determined as follows:
        i.       The Student would “continue to receive specialized
                 instruction at the Spring Harbor Hospital with his current
                 IEP;”
       ii.       Lewiston Public Schools would provide tutorial services
                 for the Student [on a part time basis] upon discharge from
                 Spring Harbor;
      iii.       Evaluations of the student would include a ABLSS and
                 SIB-R;
      iv.        The Student would continue to require Day Treatment level
                 services to receive educational benefit; and
       v.        The Student would receive specialized instruction at
                 Merrymeeting Center in Bath for six hours per day;

17. The PWN dated September 18, 2006, stated in relevant part:

         The PET agreed that (the Student) will continue to
         receive specialized instruction at the Spring Harbor
         Hospital with his current IEP. (The Student) will
         receive tutorial services when discharged from
         Spring Harbor for 2 hours per day until staffing can
         be secured at the Merrymeeting Center in Bath at
         which point (the Student) will attend the
         Merrymeeting Center in Bath for 6 hours per day
         with his current IEP Goals and
         Objectives…Attending Spring Harbor until
         Merrymeeting can secure staffing was considered
         but rejected as Spring Harbor is a residentially
         based program…It is unclear at this time whether or
         not in-home supports can be secured. Placement at
         Merrymeeting is dependent upon securing staff
         positions which it is believed will be possible in
         October.

18. The IEP, written in connection with the September 18, 2006 PET
    meeting, identified behavior impediments and set forth a behavior plan.
    The plan was initially created on March 21, 2006 and was revised on
    May 6, 2006. The September 18, 2006 IEP identified language and
    assistive technology devices and services required by the Student. Also
    attached to the IEP were several documents from the Margaret Murphy
    Center for Children for Children from December 2005, including a five-




                                                                          8
                    page “IEP Goals and Objectives” report; a two-page “OT consultation
                    report;” and a four-page “Positive Behavioral Support Plan (PBSB).” 4

               19. The September 18, 2006 IEP included a statement on the least restrictive
                   alternative, which noted, “Due to (the Student’s) need for a highly
                   structured and specialized program and current behavioral instability,
                   he requires a Hospital based program that cannot be provided with non-
                   disabled peers.” (IEP, page 5.) The IEP also stated that “Due to (the
                   Student’s) high levels of behavioral instability and communication
                   deficits he requires a very specialized education program that cannot be
                   provided with general education peers.” (IEP, page 6).

               20. While the September 18, 2006 IEP indicated two hours of direct
                   instruction, 5 times per week, there were no supportive services
                   indicated in the IEP. The PET minutes indicated that, “In home support
                   levels and services are dependent upon staffing at this time.” There were
                   no PET records indicating the rationale for providing this level of
                   educational instruction.

               21. On September 28, 2006, the Student was discharged from Spring Harbor
                   Hospital and returned to his home in Lewiston. There were no records
                   of a PET meeting at or around the time of discharge. There were also no
                   records of in-home supports that were in place for the Student at the time
                   of his discharge from Spring Harbor Hospital. However, the Parents
                   reported, through a letter from Dr. Carol Hubbard of the Maine Medical
                   Center Developmental-Behavioral Pediatric Clinic on November 7,
                   2006, that Merrymeeting Behavioral Health provided them with an in-
                   home support worker. The Parents also reported that this person had
                   only a high school education and “not much training.” The Parents
                   reported that this support person left after approximately 2 weeks and
                   was not replaced.5

               22. In an interview with the complaint investigators, John Jones, Special
                   Education Coordinator, Lewiston Public Schools, stated that he
                   understood that part of the decision to discharge the Student from Spring
                   Harbor was based on the Parents’ request to have him back home. Mr.
                   Jones also said that he understood that Merrymeeting Behavioral Health
                   provided the Student with an in-home support worker. He stated that he
                   did not keep records relating to any of the in-home supports or the
                   numbers of hours of such supportive services.



4
  Although the IEP is dated September 18, 2006, it was not sent to the parents until October 25, 2006, after
the Student’s release from Spring Harbor Hospital, and after the District ceased provided services for the
Student.
5
  The complaint investigators were unable to verify this information without a release from the Parents.


                                                                                                           9
               23. Lewiston School District provided tutoring services for the Student
                   beginning the first week in October, 2006. One of the Student’s tutors,
                   Tara Adams, reported that she was first approached about tutoring on
                   October 3, 2006. Ms. Adams, a certified special education teacher, with
                   a background in behavioral issues, reported that when she first met with
                   the Student, she noticed the severity of his Autism and Mental
                   Retardation. Even with both Parents in the room, the Student was very
                   disruptive, spilling liquids and tearing pages out of books. Ms. Adams
                   was concerned about her ability to handle the Student on her own. A
                   second tutor, Cheryl Duval, was also assigned to work with the Student.

               24. All of the tutoring services were provided after regular school hours at
                   the McMahon School, a public elementary school in Lewiston. Ms.
                   Adams reported that, for the first week, only one hour of tutoring
                   services was provided per day. Tutoring services were increased to 1 ½
                   hours per day for the second week.6 The tutoring sessions were held in
                   the more contained “time out” room, which, according to Ms. Adams,
                   the Student’s step-mother had approved.

               25. Ms. Adams and Ms. Duval reported that the Student would quickly get
                   bored with simple tasks, and that he would vomit whenever he didn’t
                   like doing a task. Ms. Adams reported that she would spend more time
                   “picking up vomit and changing diapers” than providing tutoring or
                   educational services.

               26. Ms. Adams and Ms. Duval reported that after several weeks, the Student
                   was becoming more aggressive. Ms. Adams reported that she did not
                   have many materials to work with, which was a problem for providing
                   instruction or support. For example, she mentioned that she did not have
                   a PECS board, which she said would have greatly assisted her work with
                   the Student. Ms. Duval also reported that the failure of the tutoring had
                   “a lot to do with not having the right supplies and equipment.” She
                   reported that requests were made to the Lewiston Special Education
                   Department; however, no materials were provided before the tutoring
                   ceased.

               27. Ms. Adams reported being “burnt out” and Ms. Duval said she’d “had
                   enough” and “had to let go” of the tutoring services. Tutoring services
                   ceased on October 20, 2006.

               28. Between October 20, 2006, and the time that the Student was re-
                   hospitalized at Spring Harbor Hospital by his father on November 24,

6
  Ms. Adams and Ms. Duval stated that they taught below the 2 hour plan since the Student would “get
bored” with simple tasks, and they were not able to keep his attention for the allotted time. There was
nothing in the record to document any change in the tutoring plan or the reason why the full 2 hours of
tutoring was not provided.


                                                                                                          10
   2006, no tutoring or other supportive services were provided to the
   Student by the District.

29. The Student’s parents ultimately contacted Dr. Carol Hubbard of the
    Maine Medical Center Developmental-Behavioral Pediatric Clinic, who
    met with the Student and his parents on November 7, 2006. In her
    report, dated November 7, 2007, Dr. Hubbard reported that during the
    seven-month stay at Spring Harbor Hospital, the Student had made
    “considerable improvement” in several of his “challenging behaviors.”
    However, he required 1:1 support up until the day of his release. She
    reported that, “Since (the Student) has been at home, life has been very
    challenging for his family…Life has been made particularly difficult at
    home due to the remarkable lack of services, both in-home support
    services and educational support, that (the Student) has received. He is
    essentially receiving no services at all at the moment.”

30. Dr. Hubbard added that “(The Student) is having a number of very
    difficult behaviors at home” and that the Student needed “constant
    supervision to be safe.” She also discussed the conditions for the parents
    at home with the Student:

         Life is extremely challenging, understandably, for
         (the Student) and his family as he has no in-home
         support or educational program in place despite an
         intensive 7-month hospitalization at Spring Harbor
         Hospital…(The Student) has returned to most of the
         behaviors for which he was hospitalized…His
         parents have been forced to sleep in the same room
         with him and sometimes in the same bed with him
         in order to prevent this behavior at night…because
         he was having very frequent fecal and urinary
         accidents, they placed him back in pull-ups…His
         vomiting behaviors have increased somewhat and
         are occurring approximately 3 to 4 times per week,
         mostly in the setting of trying to avoid tasks…(the
         Student) is having very disruptive sleep
         patterns…he has returned to biting his hand when
         frustrated…His parents have attempted to pursue
         any means that they can to help further (the
         Student’s) education and communication abilities
         on their own. They have gotten a PECS Board
         Maker Program and have a laptop computer, but no
         training has been available for this augmentative
         communication support… (The Student’s) needs are
         really at a residential care level; therefore I feel his
         family needs a dramatically increased level of in-



                                                                           11
         home and education support so that (the Student)
         has one-on-one at least during waking hours, if not
         24 hours a day.

31. The Parent reported that he was forced to leave his job in order to care
    for the Student, and that he was not eligible for family medical leave.

32. The Student was re-hospitalized at Spring Harbor Hospital by his father
    on November 24, 2006.

33. A PET meeting was held on December 8, 2006. The minutes of this
    meeting reflected a decrease in “chair throwing, flopping, lunging and
    rumination… [and] vomiting is still present at very low levels.”
    Placement options were discussed at this PET; though the status of the
    Spurwink School was unknown, it was determined that the
    Merrymeeting Center could only provide two full days per week,
    beginning on January 18, 2006. The PET determinations included:
       i. Continuing at the Spring Harbor Developmental Disability
          program with 5 hours of direct services per day;
      ii. Occupational Therapy Services for 1 hour per month consultation
          and 2 hours per month direct services;
     iii. Speech and Language services for 2 hours per week; and
     iv. Reconvening the PET on December 20, 2006 to review the
          Student’s progress and placement status.

34. The PWN, dated December 8, 2006, affirmed the PET determinations
    and noted that “(The Student) is currently receiving specialized
    instruction in a hospital based program due to behavioral
    regression…the Merrymeeting program was unable to secure the
    necessary staff to enable the Student attend in October. The Spurwink
    School in South Portland is also attempting to staff a classroom for
    which the Student would be appropriate but also has not been able to
    secure the required staff…the Lewiston Public Schools will also attempt
    to program for the Student although it should be noted that the PET has
    determined that a specialized Day Treatment Program is the Least
    Restrictive Alternative given the Student’s needs.”

35. A PET was reconvened on December 20, 2006 to review the Student’s
    progress and placement status. By this time, a full time opening had
    developed at the Spurwink School in South Portland, Maine. The PET
    determined that the Student would attend on a full time basis at the
    Spurwink School with his current IEP. The PET indicated that it would
    reconvene within 30 days of the Student’s placement at Spurwink.

36. The PWN, dated December 20, 2006, confirmed the Student’s
    placement at the Spurwink School beginning January 16, 2007. The



                                                                               12
                notice indicated that the Student would receive 1:1 Educational
                Technician support, and the PET would reconvene by February 28, 2007
                to review the Student’s IEP and make any changes that were needed.

            37. A PET convened on February 26, 2007 and made the following
                determinations:

                   i. The Student will continue to receive specialized instruction at the
                      Spurwink School in South Portland with a new IEP;
                  ii. A 1:1 Educational Technician will be provided for (the Student)
                      during the school day;
                 iii. The Student will receive ESY services during the summer of 2007
                      per the Spurwink ESY schedule;
                 iv. The Student will receive 90 minutes of direct Occupational
                      Therapy Services with 60 minutes per month consultation to the
                      classroom and educational milieu; and
                  v. The Student will receive 90 minutes of direct Speech and
                      Language Services with 60 minutes per month consultation to the
                      classroom.

            38. In an interview with the complaint investigators, K.C. MacArthur,
                Assistant Program Director, The Spurwink School, and the lead
                classroom teacher, Davan Claussen, reported that the Student had
                “settled in nicely” with their program, though he was one of the “lower
                functioning” children at their facility. Mr. MacArthur noted that the
                Student would continue in the summer program, and that he was the type
                of child who would regress if not given a consistent program.

VII.   Conclusions

       Allegation # 1: Failure to provide a free appropriate public education (FAPE) in
       violation of Maine Special Education Regulation § 1.3. VIOLATION FOUND

       a. Failure to Provide Educational Services (VIOLATION)

       MSER § 1.3 addresses a school’s obligation to provide a Free Appropriate Public
       Education and provides in relevant part as follows:

              The guarantee of equal educational opportunity entitles each
              Student with a disability residing in the State…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
              [and]… Are appropriate to the special needs of the Student as
              defined in an Individualized Education Program…




                                                                                       13
        In Hendrick Hudson Board of Educ. v. Rowley, the United States Supreme Court
        further defined 'free appropriate public education’ as follows:

                 Implicit in the congressional purpose of providing access to a 'free
                 appropriate public education' is the requirement that the education
                 to which access is provided be sufficient to confer some
                 educational benefit upon the handicapped child. . . . We therefore
                 conclude that the 'basic floor of opportunity' provided by the Act
                 consists of access to specialized instruction and related services
                 which are individually designed to provide educational benefit to
                 the handicapped child.

        Hendrick Hudson Board of Educ. v. Rowley, 458 U.S. 176, 200-202, 73 L.Ed.2d
        690, 102 S.Ct. 3034 (1982). See also: Evans v. The Board of Education of the
        Rhinebeck Central School District 930 F.Supp. 83 U.S. District Court, Southern
        District of New York 1996;

            The Lewiston School Department’s failure to provide FAPE under MSER §
        1.3 encompasses several different components. First, the IEP developed at the
        PET meeting on September 18, 2006, was inadequate to meet the Student’s
        unique needs. This IEP called for only 2 hours of daily direct educational
        support. In contrast, the Student received 5 hours of specialized daily instruction
        during his seven-month hospitalization at Spring Harbor Hospital. This point is
        underscored by the June 8, 2006 IEP developed while the Student was at Spring
        Harbor Hospital which stated, “(The Student’s) educational needs are significant
        and require extensive resources.”

                Pursuant to the June 8, 2006 IEP, the Student received 25 hours per week
        of special education services, and day treatment level services included 1 hour of
        occupational therapy services and 2 hours of Speech Therapy services per week.
        In addition, this IEP included extended school year service of 5 hours per day of
        direct instruction to “prevent substantial loss of previously learned skills and/or
        substantial difficulty in relearning skills.”7

                In fact, the Student did not receive even two hours per day of direct
        educational support during any of the 10 days that tutoring services were
        provided. For the first week, only one hour of tutoring services was provided per
        day. Tutoring services were increased to 1½ hours per day for the second week.
        The tutors reported that they did not have many educational materials which
        created problems for providing instruction and support. Despite requests made by
        the tutors to the Lewiston Special Education Department, no additional materials
        were provided. Tutoring ceased on October 20, 2006. There is no
        documentation with regard to the reduced hours of these tutoring services or the
        reasons the services were terminated.

7
  K.C. MacArthur, Assistant Program Director of The Spurwink School, stated that the Student was the
type of child who would “regress if not given a consistent program.”


                                                                                                       14
            While the September 18, 2006 IEP stated that the “2 hour” program would
        only continue until staffing could be secured at the Merrymeeting Center in Bath,
        there were no specific assurances as to timeframes that the Student would be
        admitted to The Merrymeeting Center. Once the tutoring ceased, the District
        attempted to locate a program for the Student8; however no program was provided
        until the Student was readmitted by his father to Spring Harbor Hospital on
        November 24, 2006.

            In addition, the PET minutes of September 18, 2006 did not provide any
        rationale for why the PET determined that only two hours of tutoring, after school
        hours, was appropriate for the Student. The PET needed to adequately explain
        why there was a change in programming and how the Student could access the
        general curriculum through this amount of tutoring.

             b. Failure to Provide Supportive Services: (NO VIOLATION)

             In addition to inadequate educational services, the District also failed to
             provide any support services. The IDEA entitles qualifying children to
             services that “target ‘all of [their] special needs,’ whether they be academic,
             physical, emotional, or social.” Lenn v. Portland Sch. Comm., 998 F.2d 1083,
             1089 (1st Cir. 1993). “Educational performance in Maine is more than just
             academics.” Mr. and Mrs. I v. Maine School Administrative District No. 55,
             U.S. Court of Appeals, First Circuit 06-1368 06-1422 107 LRP 11344 March
             5, 2007

            In Roland M. v. Concord Sch. Comm., 910 F.2d 983, 989 (1st Cir. 1990), the
        First Circuit Court held:

                 Congress indubitably desired “effective results” and “demonstrable
                 improvement” for the Act’s beneficiaries. Burlington II, 736 F.2d
                 at 788. Hence, actual educational results are relevant to
                 determining the efficiency of educators’ policy choices. …The key
                 to the conundrum is that, while academic potential is one factor to
                 be considered, those who formulate IEPs must also consider what,
                 if any, “related services,” 20 U.S.C. § 1401(17), are required to
                 address a Student’s needs. Irving Independent School Dist. V.
                 Tatro, 468 U.S. 883, 889-90 (1984); Roncker v. Walter, 700 F.2d
                 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864 (1983).

               Among the related services which must be included as integral parts of an
        appropriate education are “such development, corrective, and other supportive
        services (including psychological services . . . and counseling services) as may be

8
  The District provided a communication log showing phone calls made by the District on November 17, 20
and 21, 2006. There is no information on any calls made or communication to the parents between the date
that the tutoring ceased on October 20, 2006 and November 17, 2006.


                                                                                                     15
        required to assist a handicapped child to benefit from special education.” 20
        U.S.C. § 1401(17).

            From the June 8, 2006 IEP, the Student received day treatment-level services
        including 1 hour of occupational therapy services and 2 hours of Speech Therapy
        services per week, in addition to the residential support received at the hospital.
        The PET minutes from the meeting on September 18, 2006, provided that the
        Student “will continue to require day treatment level services to receive
        educational benefit”. The September 18, 2006 IEP, however, had no Speech or
        Occupational Therapy or other supportive services indicated, suggesting that these
        supportive services had been eliminated from his plan, although the PET minutes
        did not reflect any discussion to reduce or eliminate these services.9 Therefore,
        the District failed to provide the Student with the necessary Speech and
        Occupational Therapy that was required as part of his educational programming.

               In addition, the June 8, 2006 PET minutes stated that “the Student will not
        be discharged from the Spring Harbor Program until sufficient in-home supports
        have been secured.” In their letter of March 14, 2007, the District stated that the
        Student was released from Spring Harbor Hospital “with the understanding that
        home supports were in place.”

            In her letter of November 7, 2006, Dr. Carol Hubbard stated:

                 The Student is having a number of very difficult behaviors at home
                 that have necessitated his father stopping work…life has been
                 extremely challenging for his family” as the Student has “no in-
                 home support or educational program in place despite an intensive
                 7 month hospitalization at Spring Harbor Hospital…[and] since the
                 Student has been home, he has returned to most of the behaviors
                 for which he was hospitalized.

                Although it appears that the lack of these in-home support services may
        have been directly related to the failure of the Student’s educational
        programming, our investigation into this matter was hampered by the Parent’s
        unwillingness to communicate or provide the necessary medical releases to the
        service providers. Without such information, there was no way to determine what
        in-home supportive services, if any, were the responsibility of the District to
        provide. Additionally, it appears from the record that the Parent played a
        significant role in the timing of the Student’s discharge from Spring Harbor
        Hospital.10 While the District may be obligated to challenge such unilateral
        decisions, the District cannot be held responsible for the Parent’s choice to

9
  The District has confirmed that no Occupational Therapy or Speech Therapy services were provided to
the Student between the time that he was discharged from Spring Harbor Hospital on September 28, 2006,
to the time that he was readmitted to Spring Harbor Hospital on November 24, 2006.
10
   The September 18, 2006 minutes reflected that “(The Student’s) discharge from Spring Harbor is
imminent but is contingent upon parent’s wishes.”


                                                                                                    16
remove the Student from his residential placement before in-home supports were
in place. Accordingly, based on the available information, we cannot find that the
District violated Maine Special Education Regulation §1.3.with regard to the
allegation that it failed to provide sufficient in-home supports.

Allegation # 2: Failure to implement an Individualized Education Program (IEP)
in violation of Maine Special Education Regulation §10.5. VIOLATION
FOUND

MSER § 10.5 addresses a school’s obligation to implement an Individualized
Education Program and provides in relevant part:

       Each school administrative unit shall implement a Student with a
       disability's Individualized Education Program as soon as possible
       following the P.E.T. meeting but no later than 30 days after the P.E.T.'s
       initial identification of the Student as a Student with a disability in need of
       special education and supportive services…If a school unit is unable to
       hire or contract with the professional staff necessary to implement a
       Student's Individualized Education Program, the administrative unit shall
       reconvene a P.E.T. to identify alternative service options. This P.E.T.
       meeting shall occur no later than 30 days after the start of the school year
       or the date of the P.E.T.'s development of the I.E.P. The P.E.T. shall
       determine the compensatory services, if any, necessary to compensate for
       the lack of services and to ensure the provision of a free appropriate public
       education. (Emphasis added)
        As noted above, the District did not provide even the 2 hours of daily
educational services required by the IEP. For the first week, only one hour of
tutoring was provided per day. Tutoring services were increased to 1-½ hours per
day for the second week. The tutors reported that they did not have many
materials to work with, which created problems for providing instruction or
support. Finally, tutoring services ceased on October 20, 2006, and the Student
received no tutoring or other educational services until his parents readmitted him
to Spring Harbor Hospital on November 24, 2006. Despite the District’s
obligation to reconvene a PET to identify alternative service options if the unit
was unable to hire or contract with the professional staff necessary to implement a
Student's Individualized Education Program, the District did not hold a
subsequent PET until December 8, 2006, seven weeks from the date that services
ceased.

Allegation # 3: Failure to provide notification to the parents of a significant
alteration of an IEP in violation of Maine Special Education Regulation 10.4
NO VIOLATION

MSER § 10.4 addresses a school district’s obligation to notify a parent with
regard to a change of an individualized education program and provides, in
relevant part:


                                                                                   17
       The parent of each Student with a disability for whom an Individualized
       Education Program is developed shall be sent prior written notice as
       described and defined in §12.3 before the implementation of the Student's
       Individualized Education Program.
       Notification shall be repeated in the event of a proposal that the
       Individualized Education Program be terminated or significantly altered.
       Changes that significantly alter an Individualized Education Program and
       require a Pupil Evaluation Team meeting to develop a new Individualized
       Education Program and prior written notice shall include:
       A.      The addition of new services to a Student with a disability;
       B.     A significant change in the amount or frequency of services
       provided which exceeds 10 school days;
       C.     The termination (including graduation) of previously provided
       services; and
       D.     A change in the educational goals and/or objectives in the
       Individualized Education Program.
       While the District failed to provide FAPE for the Student, the District did
provide notice to the parents of changes in programming. Accordingly, there was
no violation of MSER § 10.4.

Allegation # 4: Failure to implement an IEP for a Student transferred from
another service provider in violation of Maine Special Education Regulation
§10.9 NO VIOLATION

MSER § 10.9 addresses a school district’s obligation to implement an IEP for a
Student transferred from another service provider and provides, in relevant part:

   10.9     Transfer Students
       Students who received special education and supportive services in
       another school, Child Development Services, or Early Intervention Service
       Provider (if transferring from another state’s preschool early intervention
       system) or school unit within or outside of the State shall, on transfer and
       with prior written notice to the parent, be provided with special education
       and supportive services consistent with the Individualized Education
       Program (I.E.P.)/ Individual Family Service Plan (I.F.S.P.) developed at
       the previous school, Child Development Services or Early Intervention
       Service Provider and shall be referred to the receiving unit's Pupil
       Evaluation Team.
       Upon referral, the Pupil Evaluation Team shall convene as soon as
       possible to review available evaluation information, determine the need
       for additional evaluations, determine the Student's disability and need for


                                                                                 18
       special education and supportive services, and develop a revised
       Individualized Education Program, if necessary, for the Student.

        Although the Student did receive a sharp reduction in services after he was
discharged from Spring Harbor Hospital on September 28, 2006, and returned to
his home in Lewiston, he remained under the jurisdiction of the Lewiston School
District. Accordingly, there is no violation of this section since the Student is not
a transfer Student from “another school or school unit” as defined in MSER §
10.9.

Allegation # 5: Failure to provide qualified staff in violation of Maine Special
Education Regulation § 5.6. NO VIOLATION

MSER § 5.6 addresses a school district’s obligation to provide qualified staff and
provides in relevant part 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.
       If a school administrative unit is unable to hire qualified staff for the
       provision of supportive services, the unit shall make an ongoing, good
       faith effort to recruit and hire appropriately and adequately trained
       personnel to provide supportive services to Students with disabilities. In a
       geographic area of the State where there is a shortage of qualified
       personnel who meet the requirements of this section, the unit may hire the
       most qualified individuals available who are making satisfactory progress
       toward completing, within three years, the applicable course work
       necessary to meet the licensing standards described in §18.3…
        The Parents reported that they had an in-home support worker through
Merrymeeting Behavioral Health for approximately 2 weeks. According to Dr.
Hubbard’s report, the Parents reported that this person had only a high school
education and “not much training”. The anecdotal information provided by Dr.
Hubbard’s report implied that the in-home support personnel were not adequately
qualified or trained to provide adequate services to the Student. However, the
District had no records of the services provided, and complaint investigators were
not able to obtain a release from the parents in order to obtain information from
the service providers. Therefore, without more information, we are not able to
confirm the allegation that the District failed to provide qualified staff in violation
of Maine Special Education Regulation § 5.6.



                                                                                    19
Allegation # 6: Failure to properly conduct a PET in violation of Maine Special
Education Regulation § 8.3. VIOLATION FOUND

MSER § 8.3 addresses a school district’s obligation to properly conduct a PET
and provides, in relevant part as follows:

       The major responsibilities of a Pupil Evaluation Team are:
       B.     To determine the present levels of performance and educational
       needs of the Student in all affected academic and non-academic areas.
       D.      To develop or revise an Individualized Education Program (I.E.P.)
       to provide each identified Student with a disability a free appropriate
       public education.

        On March 22, 2006, the Student was discharged from the day treatment
level services at Margaret Murphy Center for Children to the residentially-based
program at Spring Harbor Hospital. The March 22, 2006 PET determined that
“(The Student) will receive specialized services at Spring Harbor with his current
IEP adjusted for direct service level.” The prior written notice dated March 22,
2006, stated that “he will receive 5 hours of specialized instruction daily with his
current IEP…A PET will be convened at the Spring Harbor Hospital to review his
program and discuss discharge planning.” The March 22, 2006 PET set a
tentative review date “as needed or within 45 school days.” Despite these written
determinations, and the regulatory obligations to revise the IEP, no PET meeting
was convened or IEP created until June 8, 2006, almost three months (50 school
days) after the Student had been transferred to Spring Harbor.

        The District also violated MSER § 8.3 in connection with the PET
convened on September 18, 2006, which addressed the issues relating to the
Student’s transition from Spring Harbor Hospital to his home in Lewiston. The
PET minutes from this meeting provided that the Student “will continue to require
day treatment level services to receive educational benefit.” Despite the Student’s
history of receiving day treatment level services, including speech and
occupational therapy, there was no documentation in the September 18 IEP of any
supportive services. Additionally, the PET did not adequately document the
revisions to the Student’s IEP in light of this change of programming, which
ultimately resulted in the premature termination of the planned programming and
a denial of FAPE.

        Finally, the September 18, 2006 PET inappropriately vested unilateral
control over the Student’s placement with the parents by noting that “Discharge
from Spring Harbor is imminent but is contingent upon parent’s wishes.” A
decision about placement is a PET decision. John Jones, Lewiston Special
Education Coordinator, stated that he understood that part of the decision to
discharge the Student from Spring Harbor was based on the parents’ request to



                                                                                  20
         have him back home. However, this statement was not documented in the PET
         minutes.

                 In Parent v. Augusta School Department 102 LRP 9493 (August 14,
         2001), the matter of PET responsibility in the context of parental determinations
         was addressed as follows:

                  The Pupil Evaluation Team, which includes the parent as an integral part,
                  is responsible for ... the development of an individualized Education
                  Program appropriate for the Student ... [Maine Special Education
                  Regulations, 8.1] It is the responsibility of the PET to make
                  determinations, based on objective data and discussion, of the needs of
                  Students, with parent participation. They are not to give up that
                  responsibility in deference to parent's suggestions…It is admirable that the
                  school wished to be responsive to the parent and flexible in its
                  programming considerations. However, the school cannot defer to the
                  parent's wishes when it is contrary to the needs of the Student…to deny a
                  Student access to a full school day, in absence of any plan, denies a
                  Student the free appropriate public education they are entitled to by law.
                  (Emphasis added)

                 As in the Augusta case, it was inappropriate for the school to make
         programming decisions based solely on the wishes of the parents. Rather, it was
         the responsibility of the PET to develop and implement an objective, appropriate
         education program for the Student. While the District had the right to challenge
         the Parents’ decision to remove the Student from his placement at Spring Harbor
         under MSER §13.1,11 the District took no such action in this case.

VIII. Ancillary Issues

           Ancillary Issue No. 1: Failure to determine whether the District was responsible
           for providing specific in-home supportive services in the Student’s IEP. MSER
           §§ 6.1, 10.2 (C),(D), 10.3. VIOLATION FOUND

             MSER § 6.1 states that supportive services must be identified in the student’s
             IEP. MSER § 6.3 requires contractual obligations if a school district has the
             provision of supportive services to be carries out by an appropriate individual
             or agency.

             MSER §10.2 (C) provides, in relevant part as follows:


11
   MSER §13.1 provides in relevant part: “a parent or school unit may submit a request for mediation to
resolve a dispute regarding…the provision of a free appropriate public education in the least restrictive
alternative to a student with a disability…a parent or school unit may submit a written request for a due
process hearing…when there is a disagreement regarding the identification, evaluation, placement or the
provision of a free appropriate public education to a student.” (Emphasis added)


                                                                                                            21
               Each Individualized Education Program shall contain the following
               components:
               C.      A section describing the specific special education and supportive
               services and supplemental aids and services to be provided to the Student,
               or on behalf of the Student, the amount of each service, and the staff
               positions responsible for providing the services and a statement of the
               program modifications or supports for school personnel that will be
               provided to the Student: (Emphasis added)
                      1.      to advance appropriately toward attaining the annual goals;
                      2.      to be involved and progress in the general curriculum and
                      to participate in extracurricular and other nonacademic activities;
                      and
                      3.      to be educated and participate with other Students with
                      disabilities and Students without disabilities.
               D.      The dates of initiation, frequency, location and duration of the
               special education and supportive services, supplemental aids and services
               and modifications (not to exceed 12 months).
        The June 8, 2006 PET meeting determined that the Student’s ongoing treatment at
Spring Harbor would remain 5 hours of specialized daily instruction, and that he would
not be discharged until sufficient in-home supports had been secured. The September 18,
2006 PET minutes reflected a comment that “In-home support levels and services are
dependent on staffing at this time.” The PET determination provided that “the Student
would continue to require Day Treatment level services to receive educational benefit.”
Despite these concerns, there were no records indicating what, if any, in-home supportive
services were to be provided to the Student upon his release from Spring Harbor Hospital
on September 28, 2006 in order for the Student to continue to receive educational benefit.
John Jones, Lewiston Public Schools Special Education Coordinator, stated that he
understood that some in-home support services were provided by Merrymeeting
Behavioral Health, but that he did not keep records relating to any of the in-home
supports, nor did he keep any documentation of the numbers of hours of such supportive
services. If day treatment level services were needed in order for the Student to receive
educational benefit, the District cannot relinquish its responsibility by allowing another
agency to provide such services. MSER § 4.1 “(In some situations, the cost may be borne
directly by one or more state agencies, although the provision of special education
services remains the responsibility of the unit.”) This is especially significant in this
case, since the lack of such services may have contributed to the failure of the Student’s
educational programming.

       Ancillary Issue # 2: Failure to maintain the Student’s record of special education
and supportive services, thereby failing to ensure compliance with the Chapter 101
MSER. VIOLATION FOUND

       MSER § 10.7 requires that, when a student is placed out-of-district, the sending
school district maintains its responsibility for “ensuring compliance with these (MSER)


                                                                                        22
rules. Nothing in this section shall relieve the receiving school of its obligation to
implement a student’s IEP or to comply with these rules or the IDEA.”

       Chapter 125 § 12.01(A)(1), of the MDOE regulations, entitled Basic Approval
Standards for Public Schools and School Administrative Units, defines student recording
keeping duties as follows:

       12.01 Student Records:
             Each school board shall adopt a policy in accordance with the Family
             Education Rights and Privacy Act (FERPA) that establishes the procedure
             for changing a student record by adding or removing items, and for
             controlling access to records.
               A)      Each school administrative unit shall maintain accurate and up-to-
                       date education records on each enrolled student. Education records
                       shall be defined as in FERPA and shall include academic records,
                       disciplinary records, and other information including directory
                       information. (Emphasis added)

                       (1)     Academic records include information relating to the
                               student’s educational performance including student
                               performance on the local assessment system and on other
                               assessments as may be required for an individual student.
                               The high school transcript shall include a summary of the
                               student’s academic records for grades 9-12.

       Title 20, Chapter 32, Subchapter III, Part 4, §1232(g)(4) of FERPA defines
       educational records as follows:
               (A) For the purposes of this section, the term “education records” means,
               except as may be provided otherwise in subparagraph (B), those records,
               files, documents, and other materials which—
                       (i) contain information directly related to a student; and
                       (ii) are maintained by an educational agency or institution or
                       by a person acting for such agency or institution.

       MSER § 15.2 defines education records as follows:

               Those records which are maintained by a school unit or agency which are
               directly related to a student and any information pertaining to an
               identifiable student. The type of records covered under this term are
               further defined in the regulations implementing the FERPA of 1974.
       In this case, the District failed to document the Student’s progress. No records
were kept or maintained by the District while he was at Spring Harbor Hospital. No
records were kept or made of the Student’s discharge from Spring Harbor Hospital. No
records were kept while the Student was receiving tutoring or in-home educational


                                                                                          23
supportive services, if any was required, after the Student’s discharge from Spring Harbor
Hospital on September 28, 2006. This failure of the District’s general responsibility to
maintain records of the Student’s special education services undermined its ability to
ensure that the Student received the appropriate programming, in violation of MSER §
10.7. It also jeopardized the PET’s ability to properly review and evaluate the Student’s
progress and make appropriate determinations regarding his IEP, also in violation of
MSER § 10.7.

IX.    Corrective Action Plan

       1. The District shall arrange for an independent educational evaluation (IEE) in
          order to assess the Student’s current level of performance and his specific
          educational requirements. The independent evaluator will be asked by the
          District to assess where the Student would be presently in his performance if
          he had been provided a FAPE for the period between the time the Student was
          discharged from Spring Harbor Hospital on September 28, 2006 and his re-
          hospitalization at Spring Harbor Hospital in late November 2006.

       A copy of the IEE report and recommendations shall be provided to the Due
       Process Office, the parent and the complaint investigator within 7 days of its
       receipt by the District.

       2. The PET shall convene within 2 weeks of the District’s receipt of the IEE
          report in order to:
           a.) review the recommendations of the independent evaluator, determine
             all necessary educational supportive services that the Student requires, and
             amend the IEP accordingly, including goals and objectives.

              b.) determine what compensatory education and services should be
               provided to the Student for equity in light of the violations, taking into
               consideration extended school year programming, and amend the IEP to
               reflect such services.

          The following compliance documentation shall be sent to the Due Process
          Office, the parent and the complaint investigator:
               a copy of the PET minutes;
               a copy of the IEP; and
               a copy of the Prior Written Notice (PWN).

          Once the provision of compensatory education and services has been
          completed, the Due Process Office, the parent and the complaint investigator
          shall be sent:
               a log describing the service(s) provided, the frequency, the name and
                   job title of the individual(s) providing the service(s), and signed by
                   each provider of service.



                                                                                            24
3. The District shall immediately develop and implement a system of record
   keeping of all educational and supportive services offered to identified
   students within the district, insuring that the system reflects the requirements
   of MSER §10.2 (C). The District shall submit to the Due Process Office, the
   parents and the complaint investigator, within 30 days of receipt of this report,
   the following compliance documentation:
        a sanitized copy of records directly related to an identified student
           which are maintained by any agency or out of district placement
           including records of in-home support services necessary for an
           identified student to access FAPE;
        a copy of the description of the District’s record keeping system.

   4. The District shall schedule training for all appropriate staff members in
      order to:

          1) review State and federal regulations with respect to PET
          responsibilities and documentation of educational and supportive
          services offered to identified students; and

          2) (develop, if necessary) and review the District’s policies and
          procedures regarding a chain of custody policy for educational
          records, including medical files.
The training shall be provided by an out-of-District provider. It shall occur no
later than October 1, 2007. The District shall submit to the Due Process Office,
the parents and the complaint investigator the following documentation, within
7 days of the completion of the training:
      a biography of the trainer;
      the date of the training;
      a copy of the agenda;
      a copy of all handouts;
      a copy of the list of attendees and their job titles;
      copies of anonymous evaluations of the training.




                                                                                   25

								
To top