Complaint Investigation Report
Parents v. Portland

November 26, 2012

Complaint #09.046C
Complaint Investigator: Jonathan Braff, Esq. Date of Appointment: January 20, 2009

I. Identifying Information

Complainants: Parents
Address

Respondent: 	Jeanne Whynot-Vickers, Superintendent
196 Allen Avenue
Portland, ME 04103

Director of Student Support Services: Barbara Dee

Student: 	Student
DOB: xx/xx/xxxx

II.	Summary of Complaint Investigation Activities

The Department of Education received this complaint on January 20, 2009.  The Complaint Investigator issued a draft allegations report on January 21, 2009.  The Complaint Investigator conducted a complaint investigation meeting on February 10, 2009 (originally scheduled for February 3, 2009 but continued due to conflicts in the schedule of the Respondent), resulting
in a set of stipulations.  On January 8, 2009, the Complaint Investigator received 17 pages of
documents and a list of proposed interviewees from the Complainants, supplemented by an additional 14 pages of documents and a 5 page memorandum on February 11, 2009, and on February 5, 2009 received 19 pages of documents from Barbara Dee of  Portland Public Schools (the “District). Interviews were conducted with the following: Barbara Dee, director of student support services; Annemarie Salzburg, transition strategist; Kathryn Dunham, guidance counselor; the Student’s father; and the Student.

III.	Preliminary Statement

The Student is xx years old and is currently receiving special education under the eligibility criterion Multiple Disabilities. This complaint was filed by the student’s parents (the “Parents”) as interested parties, alleging violations of the Maine Unified Special Education Regulations (MUSER), Chapter 101, as set forth below. The Student gave her consent to have personally identifiable information released to the Parents.

IV.	Allegations

1.   Failure to conduct a psycho-educational reevaluation within 3 years in violation of
MUSER §V.1.B(2)(b);
2.   Failure to provide adequate transition services by failing to timely assist the
student with registration for a college course in violation of MUSER
§VI.2.C(3)(a).

V.	Complainants’ Proposed Resolution (from Dispute Resolution Request form)

This situation could be resolved if the District would agree to conduct a timely (within 3-4 weeks) psycho-educational evaluation, or by reimbursing the Parents or their insurance provider for any private testing that is done prior to the school system scheduling timely testing.

VI.	Stipulations

1.	The last psycho-educational evaluation of the student was performed in January and March, 2004, when she was in xx grade.
2.	The student’s parents requested a new psycho-educational evaluation on March 9,
2007 when the student was in xx grade, but the district declined to do one,
claiming the student’s reevaluation was not yet due.
3.	The student’s parents again requested a psycho-educational evaluation in the fall
of 2007 when the student was in xx grade, but the district declined to do one at that time.
4.	The student’s parents again requested a new psycho-educational evaluation in
February 2008, but the district recommended that the evaluation be put off until
the fall of the student’s xx year.
5.	The student’s parents again requested a psycho-educational evaluation in
November 2008 when the student was in xx grade, but the district declined to do one, claiming it was the district’s policy not to do those evaluations for [students in the xx grade] intending to enter college.

VII.	Summary of Findings

1.  The Student lives in Portland with the Parents, and is a xx at Deering High School.

2   In March 2004, when the Student was in xx grade, the District completed a psycho- educational evaluation of her.

3.  On March 9, 2007, when the Student was in xx grade and three years after the last dated the Student was evaluated, the Parents requested that a new psycho-educational evaluation be performed. The District declined to do the reevaluation, saying it was not yet due.

4.  In the fall of 2007, when the Student was in xx grade, the Parents again requested that a new psycho-educational evaluation be performed. The District declined to do the reevaluation.

5.  In February 2008, the Parents again requested that a new psycho-educational evaluation be performed. The District recommended that the reevaluation be put off until the fall of the Student’s xx year, and the Parents agreed with that recommendation.

6.  In the Student’s IEP dated April 18, 2008, the date of re-evaluation is listed as “3/2010.”1

7.  In November 2008, when the Student was in xx grade, the Parents again requested a psycho-educational evaluation. The District declined to do one, claiming it was their policy not to do those evaluations for xx intending to enter college.

8.  The Student’s transition plan dated October 10, 2008 lists for the training/education goal that the Student will attend college next year. One of the coordinated activities listed in the transition plan calls for the Student to think about taking a course during the spring of her XX year at Southern Maine Community College (“SMCC”) or University of Southern Maine.

9.  At a transition team meeting on January 14, 2009, the Student announced that she had decided to enroll in a course that spring at SMCC. The Student was told that in order to enroll in the course, there was a form that her guidance counselor had to sign. As the time for enrolling was rapidly approaching, the Student was encouraged to act quickly.

10.  Shortly after the meeting, the Student went to schedule an appointment to meet with her guidance counselor, Ms. Dunham. She was told that the only time Ms. Dunham had available to meet with her was January 16, 2009, the last day the form was due at SMCC. The Student made the appointment.

11.  On the scheduled date, the Student appeared in time for her appointment and waited by Ms. Dunham’s door as she had been instructed to do. After the Student had been waiting a long time, she was finally informed that Ms. Dunham had gone home because she was ill. Another guidance counselor offered to help the Student, but the Student became anxious and upset and declined the offer of assistance.

12.  As a result of the failure to get the form signed by the deadline for submission, the
Student did not enroll in her course.

13.	During an interview conducted by the Complaint Investigator with Annemarie Salzberg, Ms. Salzberg stated the following: She is a transition strategist for the District, and first became involved with the Student with the Transition Plan meeting of October 10, 2008. One of the Student’s transition goals was to attend college. At the meeting, the team discussed that for colleges to provide accommodations for students with disabilities, the

1 The IEP, although purportedly a final document, is labeled “DRAFT.” Also, neither the Consideration of Special Factors nor the Present Level of Academic and Functional Performance sections are completed.

students must present a psycho-educational evaluation completed within the last three years. The team was uncertain when the last evaluation for the Student had been done, and she was assigned the task of looking into that. Also at the meeting the Student and her parents were asked to think about whether they had any questions about the nature or extent of the Student’s disabilities. She explained that it is the District’s policy not to do testing solely for the purpose of assisting students to obtain college accommodations; the District would only
have tested a XX such as the Student if there were questions about her disabilities. There was no discussion at the meeting of any promise the District had earlier made to do testing.  If there had been, she would have followed up to find out why it wasn’t done.

After the meeting, she determined that the Student had not been reevaluated since Middle School. It was not until the transition meeting of January 14, 2009, however, that she learned of the Parent’s claim that the District had earlier promised to do the testing. At that point she spoke with the Learning Strategist at the Student’s school. The Learning Strategist reported that there was no discussion of testing in the notes from the last IEP team meeting in spring
2008.  She does not know about any earlier meetings.

With regard to taking a college class in spring 2009, she said that this was discussed at the October 10, 2008 meeting, and the Student at that time was not interested. The Student first stated an intention to take such a class at the January 14, 2009 meeting. At that time, because the classes would soon be starting, she emphasized to the Student and her parents the need to move quickly. She told the Student her next steps were to complete paperwork with her guidance counselor.

14.  During an interview conducted by the Complaint Investigator with Katherine Dunham, Ms. Dunham stated the following: She is a guidance counselor for the District and has been working with the Student since xxrade. On the date that the Student had scheduled her appointment with her to discuss enrollment at SMCC, she became violently ill early in the day, and had to leave the school. Protocol in that event was for someone to call each student on her list of appointments for that day, inform them of the situation and ask how they could
help. She assumes that wasn’t done in the Student’s case. She was not specifically aware that the Student needed her to sign a form to be able to enroll in a course at SMCC that spring. No one had told her what had been discussed at the transition plan meeting of January 14, 2009 with regard to the Student taking the course that spring. Later that day she got an e-mail from the Parents telling her of the reason for the Student’s appointment.

The appointment had been on a Friday, and when she returned to school the following Monday, she spoke with Maureen Salisbury, another guidance counselor who had known the Student when she was in middle school. Ms. Salisbury told her that she had seen the Student on Friday, and told the Student that she had one thing to take care of, but then would come back and help her. When Ms. Salisbury came back, the Student was no longer there.

15.  During an interview conducted by the Complaint Investigator with the Student, the Student stated the following: When she went to make an appointment with the secretary at the guidance office, she explained the reason for the appointment. She said she needed an appointment to fill out an application for SMCC and said it had to be right away. As the secretary was discussing the available times, Ms. Dunham came out of her office. She

explained to Ms. Dunham that the appointment was to fill out paperwork so she could take a class at SMCC that spring. The secretary told her the only appointment available was on Friday, the last day she could enroll in the course. When she went to Ms. Dunham’s office on Friday, the office door was closed so she sat by the door and waited as she had been told to
do.  After a long time, Ms. Salisbury saw her and told her Ms. Dunham was sick and had to go home. Ms. Salisbury offered to try to help her, but she was very upset and didn’t want to wait any more so she left.

VIII.  Conclusions

Allegation #1: Failure to conduct a psycho-educational reevaluation within 3 years in violation of MUSER §§V.1.B(2)(b)
VIOLATION FOUND

The Student’s last evaluation was completed in March 2004 when the Student was in xx grade. Pursuant to MUSER §V.1.B(2)(b), a reevaluation was required to be performed by March 2007, when the Student was in xx grade. The Parents requested that reevaluation in March 2007, and were erroneously informed that it was not yet due. The Parents twice more requested the reevaluation when the Student was in xx grade, and each time the District shrugged off the Parents’ request. When the Parents requested it again in xx grade, the
District cited its policy not to test xx graders who are going to college. While it is true that 34
CFR §300.305(e)(2) exempts students who are leaving special education due to graduation
with a regular diploma from the requirement that they be evaluated, this will not relieve the
District from its obligation to reevaluate in this case. It should have been done in March
2007, and the District cannot avoid its obligation by persuading the Parents to agree to postpone it until another regulation goes into effect to relieve the District of that obligation.

Allegation #2: Failure to provide adequate transition services by failing to timely assist the student with registration for a college course in violation of MUSER
§VI.2.C(3)(a)
NO VIOLATION FOUND

At the point that the Student decided she wanted to take a course at SMCC in the spring, there were only 3 days left for her to enroll. Her guidance counselor, Ms. Dunham, gave her an appointment for the last of those three days. This would have been sufficient to enable the Student to enroll in the course, however, Ms. Dunham became very ill that day and had to leave before the appointment. The District, through the actions of the other guidance counselor (Ms. Salisbury), then offered to step in for Ms. Dunham and provide the necessary assistance to the Student. This would still have enabled the Student to enroll in the course. The Student did not accept this offer of assistance. It is true that the District failed to follow its established procedure and did not contact the Student to inform her that Ms. Dunham had gone home. Had it done so, the Student may have been better able to regroup and then access the assistance offered by Ms. Salisbury. While this is regrettable, it does not constitute a

failure to provide transition services. The District is urged to review and reinforce this procedure with the appropriate staff to avoid similar occurrences in the future.

IX. Corrective Action Plan

At the Parents option, the District shall either perform a psycho-educational evaluation of the Student itself, or shall reimburse in full the cost to the Parents of such evaluation privately performed.

The District shall provide documentation of its compliance with this corrective action to the Due Process Office, the Parents and the Student. If the District performs the evaluation itself, it shall provide a copy of the evaluation report. If the evaluation is privately performed, the Parents shall provide evidence to the District of the cost of the evaluation, and the District shall provide a copy of that evidence and a copy of the reimbursement check.

The District shall also provide in-service training to special education staff on its
responsibility to comply with Maine Special Education Regulations regarding the requirement to conduct re-evaluations for all special education students at least every three years. Such training will include the distribution of a written memorandum on the matter.

Documentation of the in-service training shall include: the name and
qualifications of the presenter; an agenda of the training; hand-outs for the training; names
and titles of those who attended the training; and anonymous evaluations of the training. The District will submit this documentation, along with a copy of the written memorandum, to the Due Process Office, the Parents and the Student.

The District is also cautioned that greater care needs to be taken with regard to the proper completion of IEPs.