2011 Sanitized Complaints

State Complaint Investigations

The following Complaint Investigation Report summaries are intended to be a reference guide only, and have no legal authority. If you are interested in learning more about any of the issues described in the summaries, please see the full reports provided.

Case #11.004C

Case Title: Parent v. Surry

Allegation Categories: Evaluations, IEP Contents, IEP Implementation, IEP Process, Placement

The parent of a student with severe, multiple disabilities filed a complaint alleging that the District failed to place the Student in the least restrictive environment, failed to provide FAPE by providing an abbreviated school day, failed to provide extended school year services, failed to develop a behavior intervention plan, failed to provide therapies and assistive technology provided in the IEP and failed to conduct several evaluations. Violations were found only as to a failure to conduct an OT evaluation, to provide OT services, and to identify deaf/blind consultation services on the IEP (although the services were provided). As to the remainder of the allegations, the Commissioner found that the Student’s intensive needs in multiple domains, including the area of behavior, were limiting factors in the Student being able to attend a full day of school in a less restrictive environment. The District was in the process of developing a behavior plan and lengthening the school day when the Parent removed the Student from school.

Case #11.012C

Case Title: Parent v. Surry

Allegation Categories: Evaluations, IEP Contents, IEP Implementation, IEP Process, Placement

Case #11.015C

Case Title: "Parent v. RSU #9"

Allegation Categories: Eligibility

The Student struggled academically during his first year of high school, and the Parents complained that the District had failed to refer the Student for evaluation to determine his eligibility for special education when he was in middle school. The investigation revealed that the Student had been fairly successful in middle school, and neither school staff nor the Parents felt that the Student was then in need of special education services. No violation was found based on those facts, plus findings that the District had responded appropriately to the Student’s struggles in high school, including an offer to evaluate the Student which the Parents initially declined to accept.

Case #11.021C

Case Title: Parent v. CDS York County

Allegation Categories: Evaluations, IEP Contents, IEP Process, IFSP Contents, IFSP Process, Written Notice

The parents of a child with cortical visual impairment, who was transitioning from Part C to Part B services, complained that the evaluations used by the CDS site did not accurately reflect the factors being measured, in that the assessments were not adapted for the Child’s disability. The Parents further complained that decisions about which evaluations would be performed were not made by the IFSP Team with the Parents’ input, and that the Site’s refusal to conduct an evaluation was not documented in a Written Notice. The basis for this refusal was that the evaluation was not necessary in order to reach a determination that the Child was eligible for Part B services. The Commissioner, in finding multiple violations, observed that the Site was overlooking the equally important purpose served by obtaining valid, reliable data – to enable comprehensive, sound educational programming. Violations were also found for a failure to conduct an evaluation within 60 days, and for holding a transition meeting where no person who would be providing services was in attendance and where no IEP was developed.

Case # 11.024CS

Case Title: Disability Rights Center v. Augusta School Department

Allegation Categories: IEP Process

This systemic complaint was based upon a letter sent during the summer to all parents of 7th and 8th grade students in the District with IEPs, informing them that the students’ specialized instruction would occur during the block originally scheduled for social studies. The complaint alleged that this decision was not made by each student’s IEP Team, and was not an individualized determination. The Commissioner noted that the students involved in this program all had IEPs, developed by their IEP Teams, providing both that: they were to receive specialized instruction in language arts and/or math; and they were to participate in the regular education language arts and/or math class. As the decision as to which block of a student’s schedule would be used for the student’s specialized instruction was not necessarily a decision impacting the student’s special education needs, and therefore could be made administratively, the Commissioner found no violation.

Case #11.026C

Case Title: Parents v. RSU #84

Allegation Categories: IEP Content; IEP Implementation; IEP Process

Parents of a student with Williams Syndrome complained that the District declined to provide for speech therapy and a one-on-one educational technician in the Student’s IEP, and failed to adequately implement provisions for a weighted vest and certain classroom modifications. The Commissioner concluded that: the Student’s mild mispronunciations were not preventing the Student from accessing his educational program and did not warrant provision of speech therapy; and the support provided by the classroom educational technician, who also supported one other special needs student in the class, was adequate to meet the Student’s needs. As to the vest and modifications, the Commissioner found that, although the District was moving somewhat slowly in implementing them, they were being adequately provided. A violation was found, however, in connection with the failure to identify these items (as well as educational technician support) in Section 8 of the Student’s IEP.

Case #11.028CS

Case Title: "Interested Party v. Mid-Coast CDS"

Allegation Categories: Evaluation

This systemic complaint was filed by a provider who conducted evaluations for the Site, alleging that other evaluators for the Site were improperly administering the Battelle Developmental Inventory. Upon receipt of the complaint, the Site altered one of its forms, replacing “standard scores” with “scaled scores.” The other issues raised by the Complainant involved lack of availability and use of testing manuals, and administration of the test by unqualified persons. Upon concluding that the manuals were available and were being used when it was appropriate to do so, and that all evaluators were suitably qualified, the Commissioner found no violations.

Case #11.032C

Case Title: Parents v. Sanford

Allegation Categories: IEP Process, Records

When the Student complained over the summer of a hearing problem, the Parents sought to have the District move swiftly to provide assistive technology to address the problem. The District declined to order the technology without first obtaining data to enable the IEP Team to make that determination. The technology was ultimately ordered, but the Parents filed this complaint alleging a failure to sooner determine what additional data was required, and to consider the results of an audiological evaluation. No violation was found in view of what appeared to be unsupported recommendations in the audiological evaluation and a lack of data regarding the nature and extent of the hearing (or auditory processing) problem. Additional allegations of a failure to provide an IEP within 21 days of the IEP Team meeting, and of disclosure of personalized information without consent, also resulted in no violations where the evidence failed to sustain the allegations.

Case #: 11.040C

Case Title: "Parents v. Brewer"

Allegation Categories: Discipline; IEP Contents; IEP Implementation; IEP Process; Written Notice

The primary concerns of the Parents in regard to this complaint had to do with the Student’s use of a voice output communication device. A device was obtained for the Student on a trial basis, which proved successful. Afterwards, the Parents applied to have MaineCare fund their acquisition of the device. While the Parents’ application was pending, the Parents sought to have the provision of the device included in the Student’s IEP. Although the District did not reference the device in the IEP, the District did not state in the Written Notice that it was refusing to do so. The Commissioner concluded that the District had failed to separate the question of whether the Student required the device in order to receive FAPE, from the question of who (the Parents or the District) was going to own the device. The Commissioner directed the District to re-convene the IEP Team and make an explicit determination as to whether the Student required the device, and also found violations with respect to the Written Notice issue.

Case #:11.056 C

Case Title: "Parent v. RSU #61"

Allegation Categories: IEP Content; IEP Implementation; IEP Process; Placement; Records

The Student, who exhibited challenging and oppositional behaviors, was placed in the District’ day treatment program, and then later moved into the regular education setting with minimal support. The Parent, who had supported both of those placements at the time they were made, alleged violations for failing to provide education in the least restrictive educational environment (in the first instance) and for failing to provide support required by the Student (in the second). The Parent further alleged a failure to adequately develop and implement the Student’s behavior plan. After the Student began receiving his instruction in the regular education environment, a decision was made by the Principal, together with the Parent, to have the Student work independently outside of the classroom using a computer-based program. The Parent alleged that this decision, occurring outside the IEP Team process, violated special education law. The Parent also alleged a failure to provide the full measure of specified social work services, to provide her the opportunity to review records of when social work services were provided, and to have the IEP Team (rather than the social worker alone) develop social work goals. The Commissioner, evaluating the decisions of the District with regard to the placement and support issues, and considering the information available to the IEP Team at the time of each decision (including the Parent’s concurrence with the decisions), found no violations. The Commissioner did find a violation with regard to the decision to remove the Student from certain academic classes to have him work independently on the computer, concluding that the decision should have been made by the IEP Team. With regard to social work services, violations were found based on a significant shortfall in hours of services delivered, a significant delay in providing requested records and on the bypassing of the IEP Team when developing social work goals. As to the Student’s behavior plan, the Commissioner found a material failure to implement based on findings that a significant number of staff members were not following the plans. The District was directed to conduct training for school staff on the importance of faithful implementation of such plans.

Case #11.062C

Case Title: Parent v. RSU #61

Allegation Categories: Evaluation

Upon the Parent’s re-enrolling the Student in the District and referring him for special education evaluation, the District conducted a range of assessments, including a psychological evaluation. The Student’s IEP Team found the Student eligible for special education under the category Speech/Language Impairment. The Parent believed that the Student met the criteria for Autism, although the psychological evaluator did not see any signs of that condition. The Parent requested that the District provide an independent educational evaluation (“IEE”) that would specifically screen for indications of autism. The District offered to have the original evaluator broaden the scope of the evaluation to include such additional assessments, but the Parent insisted that she was entitled to an IEE. The District did not agree that the Parent was entitled to an IEE, but did not request a due process hearing on the issue. The Parent requested a complaint investigation, alleging that the original evaluation was not conducted properly, and that the District had failed to provide an IEE. The Commissioner found no violations regarding the original evaluation, but found a violation as to the IEE in that, as the Parent had disagreed with the District’s evaluation, the District was required to either provide the requested IEE or else request a due process hearing.

Case #11.064C

Case Title: Parent v. South Portland

Allegation Categories: IEP Implementation; Transition

When the Student’s case manager became aware that the Student had signed up for an elective that conflicted with her scheduled assisted study hall, the case manager had the Student complete the necessary paperwork to change her schedule. The Parent alleged that, during the period before the schedule could be changed, the Student was not being provided with the academic support required under her IEP. The investigation revealed, however, that the Student was obtaining the necessary support during a different part of her schedule, and no violation was found. Similarly, no violation was found on the Parent’s allegation that the Student’s transition plan did not accurately reflect the Student’s interests where those interests had been expressed by the Student at the time the plan was formulated, and the plan included the language “or another career to be chosen by [the Student] in the future.”

Case #11.072C

Case Title: Parent v. RSU #20

Allegation Categories: Discipline; IEP Contents; IEP Process; Written Notice

The Student was subject to a suspension as a result of an incident which involved possession of a weapon, after which the District conducted a risk assessment and determined at an IEP Team meeting that the Student could not return to his previous educational placement. The Parent alleged that by doing so the District violated a provision of the parties’ mediation agreement, that the District had predetermined the outcome of the IEP Team meeting and that the services provided to the Student (two hours of tutoring per day) were insufficient. No violations were found with regard to these allegations based on findings that the Parent had misconstrued the mediation agreement, that the Student’s placement was adequately discussed and considered at the meeting (in fact, the determination that resulted was different than what had been proposed initially by the District), and that the tutoring services had allowed the Student to make adequate progress. Although a violation was found based on an ancillary allegation concerning the failure of Written Notices to adequately explain the basis for determinations, no corrective action was required because the District had already taken steps to address the problem.

Case #: 11.076C

Case Title: "Parents v. RSU #61"

Allegation Categories: IEP Contents; IEP Implementation; IEP Process; Records

When the Student’s special education teacher was placed on leave, the District replaced her temporarily with a part-time special education teacher, supplemented by an educational technician and an uncertified substitute teacher. The Student’s regular education teacher then began delivering to the Student in her classroom the Student’s specially designed math instruction. A violation was found with respect to the use of an uncertified teacher to deliver the Student’s specially designed instruction, but although the delivery of instruction by the regular education teacher also was contrary to MUSER requirements, the District’s putting a stop to the practice after only a short time avoided a finding of violation. Another violation was found with respect to the District’s failure to respond to the Parent’s request to correct an error in the IEP. Documentation of revisions to the Student’s program in response to limited progress, together with recent reports of further progress, resulted in a finding of no violation with respect to an allegation of failure to revise the IEP to address a lack of progress.

Case #: 11.077C

Case Title: "Parents v. RSU #61"

Allegation Categories: IEP Contents; IEP Implementation; IEP Process; Records

When the Student’s special education teacher was placed on leave, the District replaced her temporarily with a part-time special education teacher, supplemented by an educational technician and an uncertified substitute teacher. A violation was found with respect to the use of an uncertified teacher to deliver the Student’s specially designed instruction. When the Student began refusing to leave the classroom in order to attend his speech/language therapy sessions, the therapist believed that the Parent wanted the Student to be allowed to remain in the classroom. Although the Parent contended that she had been misunderstood, as the therapist continued to offer the service, and as the Student’s IEP Team met two months later and addressed the situation, no violation was found. A violation was found based on the District responding to a request to amend a Written Notice by simply placing the request in the Student’s file.

Case #: 11.079C

Title: "Parents v. Cape Elizabeth"

Allegation Categories: Eligibility; Evaluation; IEP Contents; IEP Implementation; IEP Process; Placement

The Parents complained of a delay in the identification of the Student as eligible for special education services. The Commissioner found no violation, finding that the delay was primarily the result of delay by the Parents in responding to an e-mail from the special education director and in initially declining to accept the offer of services for their child. The Parents further complained that the District had not evaluated the Student for a reading problem, but the Commissioner found that the District was not aware of any information that suggested this was an area of suspected disability. The Parents, misunderstanding the term, complained that the Student’s instruction was not “individualized” because he received those services in a setting where other students were also receiving instruction. The Student’s program, however, was found to have been developed very specifically around his individual needs. Still further, the Parents complained that delivery of those services to the Student in that setting violated the requirement that FAPE be delivered in the least restrictive appropriate environment, contending that the services should have been provided in either the regular education setting or in a one-on-one setting. No violation was found, as the services in question were not available in the regular education setting, and the Student’s refusal to engage with his special education program was not the result of his disability, but of his feeling stigmatized by being associated with special education.

Case #: 11.081C:

Case Title: "Parent & Parent v. RSU #75"

Allegation Categories: Evaluation; IEP Content; IEP Implementation; IEP Process

Over the summer of 2010, the District redesigned its autism and life skills programs, combining them both and placing greater emphasis on delivery of services in group settings. The Parents asserted that, in doing so, the District was making educational programming decisions outside the IEP process and without taking the Student’s unique needs into account. Additional allegations included a failure to base these decisions on peer-reviewed research, failure to deliver the full amount of services during the first month of school, failure to have an IEP in effect and failure to perform a re-evaluation every three years. Only the latter allegation resulted in a finding of violation, where the IEP Team, while ordering several evaluations, did not explicitly discuss whether those evaluations fully met the re-evaluation requirement. With regard to the allegation concerning the IEP, the Commissioner found that the IEP, although labeled as “Draft,” was complete and fully in effect, but recommended that the District avoid using that term under such circumstances.

Case # 11.082CS

Case Title: "Parent & Parent v. RSU #75"

Allegation Categories: Evaluation; IEP Content; IEP Implementation; IEP Process

Over the summer of 2010, the District redesigned its autism and life skills programs, combining them both and placing greater emphasis on delivery of services in group settings. The Complainants asserted that, in doing so, the District was making educational programming decisions outside the IEP process and without taking the students’ unique needs into account. Additional allegations included a failure to base these decisions on peer-reviewed research, failure to perform re-evaluations every three years, provision of an abbreviated school day to all special education students, and failure to deliver the full amount of services to students during the first month of school. Only the latter allegation resulted in a finding of violation, based on information that the occupational therapist’s other duties during that time period were preventing her from delivering services to students. With regard to the allegation concerning the abbreviated school day, the investigation revealed that, in prior years, there was a lack of uniformity with regard to dismissal times, with special education students’ days ending earlier than many other students. As of the most recent school year, however, the problem had been resolved, and all students were being dismissed at the same time.

Case #: 11.085C

Case Title:"Legal Guardian v. AOS #97

Allegation Categories: Evaluation; IEP Content; IEP Process; Records; Written Notice

The Student, who had been receiving services through CDS in prior years, began the 2010-2011 school year without an IEP and received no services. The Legal Guardian referred the Student for evaluation in December, and the Student was determined to be eligible for special education services in March. The Legal Guardian alleged violations based on the absence of an IEP and failure to provide services, as well as an alleged failure to conduct a speech/language evaluation and a timely OT evaluation. The investigation revealed that the Student’s IEP Team, in June 2010, had determined that the Student was no longer eligible for services, and therefore no violation was found with regard to the lack of an IEP and services. No violations were found with regard to the evaluations, based on the absence of indications that the Student had any speech/language problems and on the OT evaluation having been completed within the regulatory timeframe. Violations were found, however, with regard to a failure to amend a Written Notice as requested by the Legal Guardian (or else notify her of a refusal to do so), and a failure hold an IEP Team meeting as requested within a reasonable time (or else notify her of a refusal to do so).

Case #11.087C

Case Title: Parents v. RSU #21

Allegation Categories: IEP Content

At the time of the Student’s initial eligibility IEP Team meeting, the Student was found eligible for services under the category Specific Learning Disability, but was found not eligible under the category Speech/Language Impairment. The Student was later diagnosed with a central auditory processing disorder by an outside evaluator and, at the IEP Team meeting where the audiological evaluation was reviewed, the District agreed to provide certain supplementary aids and modifications but did not agree to provide speech/language therapy as requested by the Parents because the Student’s speech/language skills were considered to be age-appropriate. Subsequently, the Student’s triennial reevaluation included a speech/language reevaluation, resulting in a determination that the Student needed speech/language services. At the same time, the Student began to receive private speech therapy. The Parents alleged that the Student should have been provided with those services from the outset. No finding of violation was made as the District’s decisions at each stage were found to be reasonably based upon the information then available to the IEP Team, and the Student had made progress under her educational program.

Case: 11.099C

Case Title: Parents v.RSU #18

Allegation Categories: Discipline; Evaluation; IEP Content; IEP Implementation; IEP Process; Written Notice

The parents of a student with autism complained that the district failed to properly implement the student’s behavior plan and that the plan developed by the district was inadequate to address the student’s challenging behaviors. The parents further alleged that the staff involved in behavior programming was not duly qualified, and raised certain procedural issues as well. The Commissioner found violations based upon the district’s failure to develop a behavior plan adequate to address the extreme behaviors exhibited by the student, including provision for removal of the student from the classroom, even though there was no consensus because the parents objected to such removal. A violation was also found based upon the district not providing the report of a functional behavior assessment to the parents at least three days before an IEP Team meeting where the report was to be discussed. No violations were found with regard to staff qualifications, where the staff members in question were all appropriately certified and credentialed, or with regard to the other procedural allegations.

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