Complaint Investigation Report
Parents  v. Lewiston

May 11, 2015

Complaint #15.051C
Complaint Investigator: Jonathan Braff, Esq.

I.  Identifying Information

Complainants:  Parent and Parent
Address
City

Respondent: 	William Webster, Superintendent
36 Oak St.
Lewiston, ME  04240

Special Services Director: Jill Hastings

Student: 	Student
DOB: xx/xx/xxxx

II.	Summary of Complaint Investigation Activities

The Department of Education received this complaint on March 16, 2015. The Complaint
Investigator was appointed on March 17, 2015 and issued a draft allegations report on March
20, 2015, followed by an amended report on March 23, 2015. The Complaint Investigator conducted a complaint investigation meeting on April 9, 2015, resulting in a stipulation.  On April16, 2015, the Complaint Investigator received 137 pages of documents from the Complainants, and received a 10-page memorandum and 148 pages of documents from Lewiston School Department (the "District"). Interviews were conducted with the following: Anne Sanders, special education supervisor for the District; Jane Williams, special education teacher for the District; Kate Benson, physical therapist for the District; Maria Theriault, occupational therapist for the District; Delbert Peavey, occupational therapist for the District; Richard Marsh, M.D., the Student's  pediatrician; Amanda Grenier, educational technician for the District; Luanne Theriault, special education teacher for the District; and the Student's  mother.

III.	Preliminary Statement

The Student is xx years old and is currently receiving special education under the eligibility criterion Multiple Disabilities (Intellectual Disability, Speech/Language Impairment and Hearing Impairment). This complaint was filed by the mother and father (the "Parents"), the

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Student's parents, alleging violations of the Maine Unified Special Education Regulations
(MUSER), Chapter 101, as set fmth below.

IV.	Allegations

1.   Failure to provide sufficient related services in the nature of occupational therapy
to enable the Student to advance appropriately toward attaining his annual goals, to be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities in violation of MUSER §IX.3.A(l)(d);
2.   Failure to provide sufficient related services in the nature of physical therapy to
enable the Student to advance appropriately toward attaining his annual goals, to be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities in violation of MUSER §IX.3.A(l)(d);
3.   Failure to utilize the Student's IEP Team as the vehicle for determining the appropriate ESY services for the Student during 2015 in violation of MUSER
§§VI.2.J(4), X.2.A(7);
4.   Failure to utilize the Student's IEP Team as the vehicle for determining the amounts of specially designed instruction and consult services for the Student in violation of  MUSER §§VI.2.J(4);
5.   Failure to develop the IEP in conformity with the determinations of the IEP team with respect to communication, instructional strategies and assessments in violation of MUSER §VI.2.J(4);
6.   Failure to adequately consider the concerns of the parent in the IEP decision making process in violation of MUSER  §§V1.2(1) and IX.3.C(l)(b).
V.	Stipulations

1.  The amounts of ESY services the Student was to receive during 2015 were not discussed in detail at the 3/10/15 IEP Team meeting, but were expected to be the subject of further discussion at the May 2015 IEP Team meeting.

VI.	Summary of Findings

h

1.  The Student lives in Lewiston with his parents and a sibling and attends xx1

 at

Farwell Elementary School (the "School"). He began receiving special education services from Child Development Services prior to entering xx.

2.  On March 4, 2015, the District held a planning meeting with the Parents to review possible goals and services for the Student in preparation for the IEP Team meeting that was scheduled to take place on March 10, 2015. A draft IEP was developed for further consideration at the meeting, but no determinations  were made.

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3. The Student's IEP Team, including the Parents, met on March 10, 2015 to conduct the annual IEP review.  The Written Notice of the meeting records the following dete1minations: the Student would receive 27.5 hours per week of specially designed inst1uction in a self­ contained setting; the Student would receive speech/language services for two 30-minute sessions and five 15-minute sessions per week; the Student would receive occupational therapy ("OT") and physical therapy ("PT") consultation services for 15 minutes per week each; the Student would receive Extended School Year ("ESY'') services at LMS, including
40 hours of direct special education services over five weeks, two 30-minute sessions of
speech/language per week, 15 minutes of OT and PT consultation services per week and 45 hours of adult support; and the Parents opted the Student out of state and local assessments.

4. In the Written Notice of the March 10, 2015 meeting, the District recorded the determination to hold another IEP Team meeting on May 4, 2015, stating that the Student's IEP Team "will be meeting in May with the Middle School staff to review [the Student]'s educational needs and his special education program at LMS starting this July. His IEP will be amended according to any changes made to his plan."

5.  Following the March 10 meeting, an IEP was developed with an effective date of 3/17/15 providing the following special education and related services: specially designed instruction,
5 times per week for 5 hours and 12 minutes; speech/language services 2 times per week for
30 minutes; PT consultation 1 time per week fot 15 minutes; OT consultation 1 time per week for 15 minutes; ESY services 3 times per week for 3 hours (7/7/15-8/6/15), with ESY speech/language therapy 1 time per week for 30 minutes, ESY OT consultation 1 time per week for 15 minutes and PT consultation 1 time per week for 15 minutes. Section 7 of the IEP records the percentage of time the Student is with non-disabled children as 14%, noting that the Student will participate in the general education setting (with staff suppo1i) for morning meeting, art, music and PE. There are many supplementary aids and services identified in the IEP, including: a written schedule; team meetings as needed; no formative or standardized
testing, per parent request, curriculum based assessments only; and staff support for the
Student 5 times per week for 6 hours.

6. The Student's  previous IEP provided the following special education and related services: specially designed instruction, 5 times per week for 6 hours and 30 minutes; special education consultation by special education teacher with ed tech 5 times per week for 30 minutes; speechllm1guage services 3 times per week for 30 minutes and 5 times per week for 15 minutes, plus speech/language consultation 1 time pre week for 30 minutes; PT direct service for 90 minutes per week; and OT direct service for 90 minutes per week. Among the supplementary aids and services were the following: a visual picture schedule that is interactive; team meetings on a trimester basis; testing accommodations; and ed tech suppo1i daily.

7. The IEP provides the following in section 4B with respect to the Student's present level of functional performance in the area of OT: "[The Student] has met his OT goals from his previous IEP. The staff working with him shows competence in carry over and in understanding his sensory needs. [The Student] continues to need motor breaks and proprioceptive input incorporated into his academic day but the ed techs and teacher working

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with him have demonstrated a good grasp on these needs and how to meet them for [the Student]. [The Student] is able to consistently write his address and phone number and is also able to write his name in cursive with fair legibility. He is independent with his ADL's that are able to be demonstrated in the school setting (i.e., washing hands, buttoning and unbuttoning fasteners on his pants, donning and doffing outer wear)."

8. The IEP contains one OT goal with three objectives as follows: Goal- Given daily modifications/adaptations and supportive services, [the Student] will demonstrate increased functional independence as seen by his ability to progress in the following goal areas by Mach
2015. Objectives- Given a highly predictable and structured routine, prescribed proactively
administered sensory strategies, a variety of visual strategies (to include but not limited to a to-do/done list created for a half-day period), [the Student] will demonstrate improved modulation of sensory stimuli as seen by no more than one episode of dys-regulation within a two week period where he shuts down completely and refuses to accept direction (currently averages 1 time per week) that is linked to sensory processing/over-load as measured by educational staff tallies by March 2015; Given multi-sensory instruction and repetition, [the Student] will demonstrate improved perceptual-motor and visual memory skills as seen by his ability to motorically produce his physical address with intact spatial relations (size/spacing/directionality) 2 out of5 trials by 11/14 and 3 out of5 trials by 3/2015, as measured by completed work sample and educational staff tallies; Given loose fitting pants and activities that strengthen bilateral coordination, body awareness and hand strength, (weekly motor group, exercises and integrated pre-voc classroom based activities), [the Student] will demonstrate improved self-help skills as seen by his ability [to] snap or button his own pants after using the restroom 2 out of 5 trials by 11/14, and 3 out of [5] by 3/15, as measure by observational tallies."

9.  The IEP provides the following in section 4B with respect to the results of the Student's most recent evaluation (3/18/14) in the area of PT: Academic Accessibility: [the Student] can independently walk with/without classmates in the hallway; [the Student] can walk up and down stairs with/without his class independently; with assistance, [the Student] can access his lunch in the cafeteria by walking and carrying tray or lunch bag; with assistance, [the Student] can enter/exit a bus through its stairs independently; [the Student] is able to access his academic plan with regards to PT.

10.  The IEP contains one PT goal with an objective as follows: "Goal- Given consultative services for PT, [the Student] will be able to access his academic environment through the following Tier II interventions for PT with a "MEETS" on the following objective as seen and recorded by the PT by March 2016. Objective- Given deficits that [the Student] demonstrates in the school environment, staff working with [the Student] (to include but not limited to his teacher, ed tech and PE teacher) will have Tier II interventions applied to his academic day to allow for him to appropriately access his day to include extra time to reach classrooms, modifications in PE, use of the elevator and use of a lunch time area outside of the cafeteria as examples of some of the modifications as seen and recorded by the PT by March 2016."

11.	During an interview conducted by the Complaint Investigator with Richard Marsh, M.D., Dr. Marsh stated the following: He is a board certified pediatrician, and the Student has

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been his patient since 2011. Prior to that time, the Student had been a patient of one of his partners in the medical practice. He sees the Student every year to conduct a physical exam. He also coordinates other medical care received by the Student outside of school. The information he has about the Student's school program comes from the Student's mother; he has not been to the School to observe the Student or any aspect of the Student's program.

When he took over the Student's care in 2011, the Student had many functional deficits. When he last saw the Student on April 9, 2015, the Student was incredibly more functional than he had been two years ago. He was surprised that the Student had developed as much as he had. The Student followed every direction, and answered questions without prompting from his mother. There was still a lot of general spasticity, but the Student clearly had made significant progress in both gross and fine motor skills. He does not believe, however, that the Student has peaked yet in his motor skills, and he thinks the Student is capable of more
growth in these areas. The Student still has difficulty with writing and buttoning his shirt, for
instance, though he has improved in these areas.

The information provided by the Student's  mother was that the Student will be receiving only
15 minutes per week of OT and PT consultation services. He understands this to mean that the OT and PT would be checking in with teachers and ed techs to see if anything needed to be worked on. He thinks the Student's continued motor skills progress will depend, in pmi, on
the skills of the teachers and ed techs working with the Student in carrying out the suggestions
of the therapists. With respect to PT particularly, the Student has complicated deficits, and needs a skilled practitioner to know the proper exercises he needs.

12.  During an interview conducted by the Complaint Investigator with Delbert Peavey, Mr. Peavey stated the following: He is an OT, currently contracted part time with the District. Last year, he was a full time salaried employee with the District, and the Student was on his caseload; he has not worked with the Student this year. He saw the Student in a number of different contexts in the School, including a large motor group (working together with the PT) where they worked on motor planning and balance coordination, a fine motor group within
the classroom while the Student worked on academics, and a lunch session once a week where they worked on functional skills around eating lunch (e.g., using a knife to cut his food).

The Student is a very complicated child, with medical conditions that cause him to be out of school frequently. The Student does best with consistency and routine, and has shown the most growth during periods when he was able to attend regularly; when his medical issues create disruption in his school attendance, the Student experiences regression. Generalization of skills can be very challenging with the Student - when the Student learns skills, they are in a certain context, and the Student may not be able to generalize those skills to different contexts. He saw improvement in the Student's  skills over the last year, the Student overall made progress, but he doesn't remember if the Student met his OT goals.

The Student displays variability in performance based on what is going on in his life, what is on his mind. The Student may perseverate on a thought or concern and require more cues than usual to perform a task. The Student is never alone at school- an ed tech is always with him
to monitor for allergic reactions- but the Student would be capable of functioning

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· independently at school from a motoric point of view (he needs to be cued to meet tasks cognitively).

The Student has sensory issues with respect to how he modulates his environment, and has processing issues. The Student may not be able to process what he's working on if other things are going on in his environment. The better a staff member knows the Student, the better that staff member will be able to get what is going on with the student and why the Student is doing what he's doing. If the Student is dysregulated, he won't be able to demonstrate skills that he may have demonstrated 15 minutes earlier. One has to understand how the Student functions and copes in the educational setting in order to effectively work with him. He believes that there are some things that could be appropriately done with the Student using a consult model, although he hasn't seen the Student for nearly a year. There is a potential for a lot of carry over because the Student's 1:1 ed tech will be hearing and seeing what happens in therapy sessions.

13.	During an interview conducted by the Complaint Investigator with Maria Theriault, Ms. Theriault stated the following: She is an occupational therapist employed by the District, and has worked with the Student since starting that employment in August 2014. The Student's IEP goals involved working on fasteners for clothing (buttons, zippers, etc.), writing his address, and decreasing his anxiety through a sensory approach and the use of a visual schedule.

Having reviewed the notes and reports of the Student's previous OT provider, she believes that the Student is currently at about the same place he was at the end of last year. At that time, he could write his name and address in a recognizable way, although he was prone to
making mistakes with spacing or leaving out letters. The Student has improved with respect to
leaving out letters. The Student writes very large, and needs definite parameters and
prompting when writing.  Last year the Student was able to manipulate clothing fasteners, and he is still able to do this independently.

As to the Student's anxiety, this year the Student's teachers have not reported any instances of the Student shutting down or refusing to work. The Student is able to use his work schedule independently. Everything else (self-dressing, self-feeding, sensory needs, etc.) is the same now as at the beginning of the school year. The Student has been able to open and close containers independently, and can cut his own food. What has changed over this year is that his teachers know the Student better -they are better at recognizing his needs and providing appropriate strategies. She has given a list to the ed techs of things they can do for the Student both inside and outside the classroom. Staff members can ask the Student "Do you need x (to bounce, for example)?" and the Student can tell them.

At this point, the Student has plateaued, and the best place for him is in a classroom with his peers rather than in a therapy room. Right now the school staff members know what to do to enable the Student to be successful in the classroom. The Student has been able to be in that classroom setting without regression when he misses time in school. She understands that the Parents work with the Student when he is not in school; one of the occupational therapist's jobs is to provide to parents tools they can use with the child in the home setting.

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She expects to use the 15 minutes per week consultation time to check in with the Student's teachers and ed techs, discussing whether the Student needs new, different interventions and making sure they understand correctly the interventions they are using currently. She doesn't think it will take more than 15 minutes per week to touch base on a few issues, but if a new issue arises that takes more than 15 minutes she will not end the consultation session prematurely. Staff will be trained at the beginning of the year on the Student's needs and interventions. At this point, the Student has a very large toolbox of sensory interventions; he doesn't  need the occupational therapist in the classroom doing these things for him.

14. 	During an interview conducted by the Complaint Investigator with Kate Benson, Ms. Benson stated the following: She is a physical therapist employed by the District, and has worked with the Student since the Student started xx, a total of eight years. When she began her work with the Student, she knew the Student had sustained significant cerebellar and frontal lobe damage, so she knew that the Student would have problems with balance and coordination. The Student was verbal to only a very small degree but was
ambulating on his own, although he required light assistance on stairs. This was more because of the Student's very small size; his bone age has always lagged behind by xx or xx years­ at the age of xx, the Student had the bone age of a xx- or xx-year-old.

Her initial goal for the Student was to enable the Student to play with his peers on the playground. She worked with the Student on how to coordinate his legs to pedal a tricycle. The Student needed to work on motor planning with the ultimate goal being to transfer those skills to school settings (playground, lunc1n·oom, etc.). In the first few years of school, play is integrated into students' learning and recess is an important part of the students' school day. As children get older, by xx  grade, the academic part of the day becomes more solidly based,
math becomes more abstract and less concrete. The physical therapist, therefore, changes how
she works with her students.

She continued for a time to operate under the theory that working with the Student on motor planning could help with writing skills, and the Student was also still on the playground for a significant part of the day. She looked at the Student on the playground to see which activities he liked to and wanted to do. The Student's mother tended to focus on the things that the Student was unable to do, whether or not the Student wanted to do them. She believes that if a student isn't motivated to engage in an activity, then the student is probably not going to make much progress, although she has to consider why the student isn't interested in it. If the
student is not motivated because the student is afraid, then she might work on the activity with the student even though it's not something he would do on his own.

When the Student entered xx grade, she worked with the Student on using the stairs and hallways, and showed the ed tech how to help the Student with that. She also worked with the Student on being able to access PE appropriately. In xx and xx grade, the Student began being pulled out of class for academics, and there was evidence of sensory issues and stereotyped behaviors. The Student's learning progressed at a slower rate than his peers, and as time went on the gap between the Student and his peers widened. The Student came to appear more as a life skills student.

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As the Student changed schools -to Geiger Elementary School and then to the School - she saw the need for direct services to help the Student access his learning environments, but she feels confident now that the Student's ed techs know what to look out for with the Student, that they know what his needs are. They report to her that they notice signs that the Student needs a motor break. She has had a hard time conveying to the Parents that changing to
consultation services doesn't mean dropping services. When the Student changes schools next year, he will be in a class with many students whom he already knows, and he is never going
to be left alone (his 1:1 ed tech will be with him). There will be little need to tweak the school environment to allow access to the Student - the Student's bathroom needs will not be a problem, and he will not use the lunchroom because of his allergies. She will be exploring the
opportunity to create a motor group in LMS, perhaps using the fitness center or Wii programs
something not as physically demanding as regular PE. She understands the Parents' concerns for the Student's  physical safety. She isn't saying that if she is unable to get a motor group going that the Student would be required to participate in regular PE activities. It may turn out that the amount of PT consult services needs to increase or that a return to direct services will be necessary, but right now if she had to provide direct service, she doesn't know what the goals or objectives would be- the Student has met his PT goals and is accessing his learning environments. She doesn't see that there is anything unique she needs to bring to the
Student's  educational program.

As a school physical therapist, she is looking at how a skill set can allow the Student to achieve access to educational or academic programming, rather than considering his total physical needs. The Student still lags behind his peers physically, but it doesn't hamper his access to his education. Ms. Williams reports to her that, at the end of the day, Ms. Williams can barely keep up with the Student as he quickly but safely navigates the stairs and goes down the hallway to meet his parents. The least restrictive environment for the Student now is
to have his strategies provided in the classroom.

15. 	During an interview conducted by the Complaint Investigator with Jane Williams, Ms. Williams stated the following: She is a special education teacher at the School, and the
Student entered her life skills class in May 2014. She was the Student's teacher in the summer program, and this year the Student is part of her class spanning grades xx through xx. The Student is a great kid, and is very positive. He has a pleasant affect and attitude, and gives his best effort.

The Student is very aware of the days of the week and time of day, and relies heavily on his visual schedule. The Student's  ed tech is great at letting him know if there is going to be a change in the schedule, and the Student is usually okay with that. When the Student isn't feeling well or is preoccupied with something, then he may have a problem with transition. Last year, the Student had a laminated schedule with two columns separated by a line down the middle and Velcro icons representing the different activities of the day. When each activity was competed, the Student would pull the icon for that activity off of the left side of the schedule and place it on the right side. The Student had a new ed tech starting in the summer, and that person wrote out the schedule and laminated it. Now, when an activity is

completed, the Student draws a line through it and then erases all the lines at the end of the week.

Although the new schedule is still interactive, she thinks that the term "interactive schedule" refers to the Velcro kind, so she changed the wording iu the IEP to "written schedule." She doesn't recall that there was a discussion of this change at the IEP Team meeting.  She has shown the new schedule to the Student's mother, and she didn't seem to have a problem with it. If the Student's mother had approached her about the change, she would have explained why she did it and would have been willing to change it back if the Student's mother wanted her to. She agrees that the Student's physical interaction with the schedule helps him with transition, but she thinks the Student's reliance on the schedule is based in part on the Parents convincing him that he needs to do it. There are occasionally periods of unstructured time in the Student's school day, and the Student seems comfortable with that. The Student is getting older, and should be moving towards a more typical school experience.

There are four ed techs in her classroom, and both she and they all know what the Student's needs and limitations are. For example, they may notice the Student start to make a fist, tap his face or pace around, and they know this means he needs a sensory break. Ms. Theriault and Ms. Benson have taught them all what to do. The Student may even ask for a break, like taking a walk or brushing. When something is happening in the front of the class, the Student will ask to move to the front so that he can hear; there is a special seat at the front where he can sit. She trusts the professional judgment of Ms. Theriault and Ms. Benson, and she believes that if, after the IEP changes to consult services, something happened or the Student showed signs of regression, they would return to providing direct services. Ms. Theriault and Ms. Benson verbalized this at the meeting.

Every afternoon at the end of the day, the Student goes quickly down the stairs and the hallway to meet his parents. Physically, his body is healthy enough to move through the school environment, although bad weather may affect his hip and make him go more slowly.

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She has watched the Student in PE, which is a regular education xx grade class, and the
Student is interacting with his peers and doing what everyone else is doing. Ms. Benson suggested at either the IEP meeting or the planning meeting that the Student not be part of a regular PE class in Middle School because the other students will be bigger and more aggressive. This was not written into the Student's  IEP, but consulting with the PE teacher would be part of the PT consultation service. She doesn't remember a discussion at the IEP Team meeting about the Student needing privacy when changing clothes for PE, but she doesn't think it will be a problem. The Student should be able to change in the bathroom area.

With regard to testing, the Parents have opted out of all standardized testing. She contacted
the Maine DOE about opting out of the alternative assessment, and received a form which she gave to the Parents so they could opt out. At one of the meetings, Ms. Sanders gave a very clear explanation  to the Parents about curriculum-based assessments and how they are different from standardized testing. They are more informal, and are not necessarily written. Curriculum-based assessment is an educator term; teachers have to use these to determine how and what to teach. They are used every day. As the teacher is teaching a lesson, the teacher looks to see if the students are applying the knowledge being taught. If so, the teacher can move one; if not, if she sees one or more of the students struggling, the teacher will adjust her teaching. There are goals in the Student’s IEP which state that progress will be measured using curriculum-based 
assessment.
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16. 	During an interview conducted by the Complaint Investigator with Anne Sanders, Ms. Sanders stated the following: She is a special education supervisor for the District. In that capacity she chairs IEP Team meetings, reviews Written Notices and IEPs, supervises special education staff, and works with staff on determining appropriate programming for students. The School, where the Student has been attending since fall 2014, is one of the schools for which she is responsible.

In spring 2014, when the Student was preparing to transfer to the School, Mr. Peavey and Ms. Benson were already talking about emphasizing compensatory strategies and moving away from direct service. They tried to help the Parents start thinking along these lines by focusing on developing functional skills for the Student. This year, in planning for next year when the Student will be in LMS, Ms. Theriault and Ms. Benson spoke about the importance of having the Student remain in his classroom as much as possible, rather than being pulled out for
direct service, but with the therapists continuing to monitor how the Student was doing in the
classroom. The decision to move away from direct service was also related to Ms. Theriault's repo1t that she believed the Student's  skills were probably as developed as they were going to be. So, for example, the Student may occasionally have difficulty with a fastener on an article of clothing (although he mostly functions independently in this area). Providing more direct services probably won't enable him to successfully operate every fastener every day, but what's important is that the Student's  ed techs be able to guide the Student when he needs assistance, with the opportunity for that ed tech to consult with an occupational therapist if a question arises.

She thinks that it's hard for the Parents to accept that there is a difference between what a xx- year-old student needs in the school setting compared to that student's overall medical needs. The District has to take the Student with the skills he has developed and help him adapt to his environment- help the Student use what he's got functionally. The therapists say that they are not looking to increase the Student's  compensatory skills, but to help him use the skills he
has. If the Student had really increased his skills over the current year then there could still be
direct services being provided, but the therapists are not seeing that kind of improvement; the Student is staying at the same level. It's also hard for the Parents to trust that the District will return to direct service if the Student's  needs change.

h

She tried to explain to the Parents at the March 101

meeting that when 15 minutes per week is

identified as the amount of consultation service, which is typical, that doesn't  mean that consultation lasts exactly 15 minutes. Usually, there are longer sessions earlier in the year, when staff are becoming familiar with the Student and his new program, getting shorter as the year progresses. The therapists will provide the amount of consultation that the situation requires.

With respect to PE, she agrees that the Student shouldn't  be placed in a regular PE class in
LMS; the expectation was that this would be discussed at the transition IEP meeting, now

scheduled for May 18, 2015. Ms. Benson said at the March  10 meeting that she would be exploring what kind of PE program might be available  for the Student  at LMS. There are probably  some other unified arts classes at the Middle School that should  be modified for the Student.  Does the Student really need to take French, for example, and what might the Student do instead during that class period?

ESY was another topic that was intended to be further discussed at the May IEP Team meeting. The issues involved  the extent to which the special education  summer program would mirror  the regular education  summer program (number of days per week and hours per day). Whatever the time periods turned  out to be, however, the same OT and PT consultation services  (rather  than direct services)  would be provided  during the summer.

At the March 10th  meeting, the IEP Team went down the list of accommodations in the previous IEP to see what should remain and what should be changed. She explained to the Parents that some of the accommodations the Student required in the general education setting didn't apply  when the Student  was in a self-contained special education  classroom, as those needs were already  being met within the structure of the class. One thing they discussed  was that the Student  didn't  need a picture schedule anymore,  and they were trying to move the Student to a more typical school program. She doesn't remember  if the change from trimester meetings  with the Parents to meetings on an "as needed" basis was specifically discussed, but "as needed" could mean more than three just as easily as less than three. She would certainly be willing  to look at this again at the May meeting. She also doesn't recall any formal discussion of the change to the amount of specially  designed  instruction in the IEP, but this was simply a calculation based on the amount of time that the Student spent outside his classroom; there wasn't  going to be a change in the services actually delivered.

There was discussion about curriculum-based  assessments at the March 10 meeting. She explained that, although the Student  wouldn't be taking state or local assessments, the Student's teacher  would still be assessing  informally; she might have referred  to this as a "classroom assessment" rather than a "curriculum-based assessment." The only thing she remembers about discussion at the meeting of the Student's use of stairways was Ms. Benson saying she would check out the stairways  at the Middle School and report at the May meeting. The Student will only need to use those stairs for a few classes per week, however, and will
use the elevator for the one class (art) he will have on the third floor of LMS. The District  has
never been unwilling to consider the Parents' concerns.

On the day of the March 10 meeting, the School principal  was out, and she was twice called out of the meeting  to address a concern  that had arisen at the School. She didn't leave at a time that determinations were being made or at a time of contention, and doesn't feel that her leaving hampered the meeting.

17.	During an interview conducted  by the Complaint  Investigator  with Luanne Theriault, Ms. Theriault stated the following: She is a special education teacher  and case manager  for the District, and was the Student's teacher and case manager  when the Student  was in xx and xx grade. Since then, she has maintained a personal  relationship with the Student's mother, and has had occasion to see the Student approximately six to ten times a

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year. When she sees the Student, the Student greets her and she asks the Student several questions which the Student answers.

One day each summer, the Parents and their children spend the day with her at her camp on the lake. The Student plays ball with his father and brother. He goes out in a kayak with his father, though she's not sure how much or how effectively the Student paddles. The Student used to not have any safety skills around the water, and needed to wear fins and a life vest. The Student can now swim wearing only inflatable arm cuffs, but he still needs someone with him when he's in the water. The Student doesn't recognize when a situation might be unsafe. He doesn't  recognize when he's been in the water too long and is tiring.

In the first few years working with the Student, she felt that there were so many sensory
issues and daily living issues that having the Student work with an occupational therapist was critical. There has been progress in those areas, but the Student still has difficulty getting dressed -putting his arms in sleeves and getting the shirt in proper position to put on. She doesn't  know if the sensory issues have improved; the Student still needs to take breaks to regroup and reorient. She is not sure if the Student recognizes that he needs those breaks himself. The Parents bring tools that the Student can use to calm himself, and the Student sometimes accesses those tools himself when he needs a break, but she's not sure he can verbalize that need.

She worries about the Student's ability to be safe in a new environment like a new school. She thinks that the Student should receive training for navigating the new setting. She knows that the physical therapist used to do stretching with the Student; she's not sure if he still needs
this. She thinks that a physical therapist looks at a situation differently than would an ed tech, and she's not sure whether consultation services would be good enough. It might depend on the skill level of the ed tech.

18. 	During an interview conducted by the Complaint Investigator with Amanda Grenier, Ms. Grenier stated the following: Until March 2015, she was employed by the District as an ed tech. During the years 2010 to 2013, she was a I:1 ed tech for the Student. Since then, she has maintained a social relationship with the Student's family, and has seen the Student four or five times. She has gone to Special Olympics events to cheer on the Student, and has seen him when he was bowling with his family.

When she was the Student's 1:1 ed tech, she planned the Student's lessons based on what she was told the Student was working on, and supported him at recess. She accompanied him to special classes, helping him cut out shapes in art class, for example. She helped the Student communicate with his peers, who often couldn't understand the Student. Over that period of time, she saw the Student want to become more independent and he became more confident. The Student made a lot more of his own decisions, like what activities he wanted to engage in during recess, or with whom he wanted to eat lunch. The Student also wanted to be more independent with his academic activities.

The Student was working on his motor skills during that time as well. The occupational and physical therapists would talk to her about the things on which they were working with the

Student, and showed her how to cany them over into the rest of the school environment. She's not a trained  therapist, however, and she was never sure if she was doing them conectly. She believes that the Student needs to continue to work directly with the therapists because if he doesn't use those muscles and do the stretches, then he will lose the gains he's made. When she used to see the Student at the start of a school year, after the summer,  there was always  regression and she had to bring the Student  back up to where he had been at the end of the previous  school year.

An ed tech can't really get the full picture with the Student. The Student won't tell you if he's in pain or something is wrong. If the student was getting direct services, the therapists  would be able to tell if the Student's hip was out of alignment,  for example, and needed to see the doctor. She could usually tell if the Student was in pain, but the Student couldn't talk about  it. On a cold day, she could see that the Student was walking up the stairs more slowly, but when she asked the Student whether he was hurting he answered "No."

19.  During an interview  conducted  by the Complaint  Investigator with the Student's mother,

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the Student's mother stated the following:   When the Student  was in the xx grade, the Parents,

thinking about what skills the Student  would need for independent living, felt that he needed to be able to legibly sign his name. The occupational therapist at the time suggested that an IEP goal be identified  that focused on having the Student  learn cursive writing, which would include  learning to sign his name. Today, two years later, the Student is able to sign his full name. The signature is not perfect with respect to directionality, size and spacing,  but the Student  can sign his name. Also at that time, the Student  needed to have all his food cut into bite-sized  pieces for him. The occupational therapist  worked with the Student on cutting  his own food. Motor planning  is an issue for the Student- he doesn't understand  that he has to cut all the way through his food and gets frustrated  when cutting is unsuccessful -but he has definitely made progress.  Another skill on which the Student has worked in OT   is opening containers, and the Student is doing really well with that.

Another  skill that the Student has worked on in OT is zipping and buttoning. Even though the Student  is xx years old, he has the bone age of a xx or xx year old. Grasping a zipper or manipulating a button through a button hole is very difficult  for the Student,  but the Student has definitely made progress. Some pants he can do successfully, but some have smaller buttonholes and the Student needs help. Also, some days the Student may not be able to zip or button an article of clothing that he could handle on another  day. The Student has made huge gains, but there are times when he needs help with motor tasks.

An ed tech is not an occupational therapist, and has limited  qualifications; the occupational therapist has the expertise. Consultation for 15 minutes  per week won't even cover all the questions the ed tech will have, never mind allowing  the occupational therapist to provide additional support.  When she observed the Student in mt class, the Student's ed tech didn't seem to understand that the directions  the teacher was giving were too much for the Student to absorb; the Student was totally lost.

The sensory  strategies that the Student has been given to help with anxiety and transition will stop being effective after a while as the Student becomes  bored with them; he will need new

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strategies. After Mr. Peavy observed the Student, he introduced all sorts of strategies. There will not be a OT/PT motor group for the Student next year in LMS. To go from 90 minutes direct service to 15 minutes consult is just too drastic a reduction.

When the Student first started school, he had braces on his feet. Any time he used a muscle group for a time the muscles stiffened up, causing pain. PT has helped the Student by stretching his muscles and by showing the Parents how to stretch his muscles. PT has helped the Student with learning to ride a bike, although the Student's strength issues prevent him from being able to ride up hills like other children.		

Through PT, the Student has developed some ball skills so he can better fit in with his peers in
the gymnasium. The Student has made gains in throwing baskets and scoring soccer  goals.
When the Student is playing sports, however, he is focused on the ball and doesn’t perceive 
danger; he doesn’t understand the need to not run into people or step aside so they don’t run 
into you. The Student needs to have a physical therapist present during PE to help the Student 
understand how to stay safe in that setting. The Student’s peers are going through puberty; 
they are very competitive. The Parents requested that PE be at least one area where the 
Student would have direct PT; the Parents don’t believe that an ed tech is able to understand
how to keep the Student safe. When she told Dr. Marsh about her concerns for the Student’s
safety in the gum, Dr. Marsh also became very concerned.

With regard to ESY services, the District might not have made decisions about three days versus four days, or the number of hours per day, but it is clear that they decided that the Student would not be receiving OT or PT during the summer. Last summer, the Student was in an OT/PT group for 30 minutes per week. This was not to prevent regression; it was for sensory and gross motor support and motor planning. Having that support helps the Student with his flexibility, motor coordination and strength. The Student also received sensory support, which is necessary for anxiety, transition and modulation. The reason the Student
doesn't  regress over the summer, or when the Student is out of school due to holidays or snow
days, is because of all the work the Parents do with him.

There was no discussion at the March 10,2015 IEP Team meeting about reducing the amount of specially designed instruction during the school day. There were other things that appeared 
in the IEP that were not discussed at the March 10 meeting: the deletion of a requirement  for trimester meetings with the Parents as an accommodation (the new IEP just said "as needed"); and the change from an interactive schedule as an accommodation to a “written  schedule." In addition, at the meeting the Parents made clear that they were opting out of all testing for the Student, and filled out forms to accomplish this, yet the IEP states that the Student would be receiving curriculum-based assessments. This was never discussed.

With respect to failing to consider the concerns of the Parents, at the March 1oth meeting the Parents expressed their serious concerns for the Student's safety in PE class and the need for PT services to be provided during that class to ensure his safety. This was not in the IEP. The Parents also expressed concerns for the Student's  safety when using the stairs between classes, when all the other students are pushing and jostling on the stairs. They suggested an

accommodation allowing the Student to leave class early or late in order to avoid a crowded stairwell. This also was not in the IEP.

The Parents also spoke at the meeting about the Student's needs with regard to changing clothes for PE class. The Student needs support to change his clothes, and the Parents also felt that changing clothes in the same space with the other students was not in the Student's best interest. The Student makes mistakes that could be embarrassing for him, and the Parents asked that something be done to provide the Student with privacy. The District staff at the meeting shook their heads like they understood, but there was nothing in the IEP addressing these concems. Perhaps this had to do with the fact that Ms. Sanders twice left the meeting - once for 23 minutes and once for 8 minutes, totaling over 30 minutes of the 90 minute meeting.

VII.  Conclusions

Allegation #1: Failure to provide sufficient related services in the nature of occupational therapy to enable the Student to advance appropriately toward attaining his annual goals, to be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities in violation of MUSER §IX.3.A(1)(d)
NO VIOLATION FOUND

Among the elements contained in a student's IEP is a statement of the related services to be provided to the student (MUSER §IX.3.A(l)(d)). MUSER defines related services to mean "special education transportation, and such developmental, corrective, and other related services pursuant to the federal Individuals with Disabilities Education Act, 20 United States Code, Section 1401 (26) and, as defined by the Commissioner, as required to assist children with disabilities to benefit from special education." MUSER §XI. Among the related services identified in MUSER §XI are OT and PT.

Interpreting the phrase "as required to assist children with disabilities to benefit from special education," the U. S. Supreme ourti explained that a related service is required to be provided only when it would be necessary to provide a child with "meaningful access to education" and that "only those services necessary to aid a handicapped child to benefit from special education must be provided."  Irving Independent School District v. Tatro, 468 U.S.
883, 891, 894 (1984).  The First Circuit has similarly stated that those related services that are
required to be provided are those that address impairments which interfere with a child's ability to learn.  Rome Sch. Comm.  v. Mrs. B., 247 F.3d 29,33 n. 3 (1st Cir. 2001). Accordingly, a finding that the District was required to provide direct OT to the Student requires a determination that those direct services are necessary to aid the Student to benefit from his special education program.

As described by Ms. Theriault, the Student's OT goals when she began working with him in August 2014 included learning to write his address, operating fasteners for his clothing, and decreasing his anxiety through use of sensory strategies and the use of a visual schedule. The Student's  ability to produce legible writing, to open and close his pants for purposes of

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toileting, and to avoid anxiety so as to be able to stay focused on learning activities were all skills that would enable the Student to access his special education program. She found that the Student was able to perform all these tasks with reasonable success, that Mr. Peavey's notes indicated that the Student had achieved that same level of proficiency by the end of the prior year, and that the Student's  degree of proficiency over the year did not markedly
improve despite the provision of direct OT service over that period. Importantly, the Student's teachers this year did not report to her any instances of work refusals or the Student shutting down. Based on these considerations, the IEP Team accepted (over the Parents' objection)
Ms. Theriault's recommendation that the Student's OT services be changed to 15 minutes per week consultation.

The Parents and Dr. Marsh stated their belief that the Student is capable of continuing to make progress if provided with direct therapy services. This appears to be based on the considerable progress the Student has made when compared to three or four years ago. They did not
provide evidence, however, to contradict Ms. Theriault with regard to the lack of progress
during the current  year. More importantly, the question is not whether the Student would make more progress if provided with direct OT, but whether the Student requires that therapy in order to access his educational program. Ms. Theriault was persuasive in describing the ability of both the Student and his ed techs to implement sensory strategies that help reduce anxiety and allow the Student to restore focus and readiness to learn. The Student's ·writing, while certainly imperfect, allows the Student to reproduce his name and address in a legible fashion, and the Student will continue to practice his writing skills in the classroom. The Student is able to perform his daily functions involving toileting and feeding.

Ultimately, the test of the adequacy of an IEP is whether it was objectively reasonable when the IEP was developed (Fuhrmann  v. East Hanover Bd. Of Education (3d Cir. 1993) 993 F. 2d
1031, 1041)), reasonable meaning "reasonably calculated to enable the child to receive meaningful educational benefits ...." D.B. v. Esposito, 675 F.3d 26 (1'1 Cir. 2012) (quoting D.S. v. Bayonne Bd. Of Educ., 602 F. 3d 553 (3d Cir. 2010)). The decision at the March 10,2015 IEP Team meeting to change the Student's IEP from providing direct OT services to consultation services was reasonably based on the professional assessment and recommendation  of Ms. Theriault, was supported by the Student's teacher, and was thus reasonably calculated to enable the Student to receive meaningful educational benefits. If it should later appear that, as a result of the discontinuation of direct OT services, the Student is not able to access his educational program and is not therefore receiving meaningful educational benefits from his program, the IEP Team will have to reconsider the Student's programming needs.

Allegation #2: Failure to provide sufficient related services in the nature of physical therapy to enable the Student to advance appropriately toward attaining his annual goals, to be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities in violation of MUSER §IX.3.A(l)(d)
NO VIOLATION FOUND

The above discussion of the legal standards surrounding provision of related services applies equally to PT as to OT. Ms. Benson has worked with the Student since he began

xx. She described  how, in the early years of a child's  education,  play is integral  to the child's programming, and therefore she worked with the Student on improving  skills to be used on the playground. As the Student got older, the emphasis shifted to enabling  the Student to utilize the stairs and hallways of his school so that he could access his educational program. Currently,  the Student is able to independently utilize the stairs and hallways of his school,
and is able to participate in physical activities with his peers. Ms. Benson reported that the Student's ed techs are able to recognize when the Student needs a motor break, and are familiar  with the strategies to be implemented in those situations.

As stated above with respect  to OT services, a related service is intended to enable a student to benefit from his special  education program. Ms. Benson believes that the Student is now able to access his educational program without the need of direct PT services,  and that belief is reasonably  supported  by her reports, and the reports of Ms. Williams,  of the Student's progress.  As was stated with respect to OT, if, after this IEP is implemented, there is indication  that the Student  is unable to access his educational  program due to conditions related to motor function,  the IEP Team will need to review the program and reconsider  the discontinuation of direct PT services.

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One issue that was not adequately resolved at the March 101

IEP Team meeting was with

respect to the Student's PE programming when he enters LMS in the fall. School staff members  agree with the Parents that the Student should not be attending a regular PE class at LMS without some further support. It  appears that this topic was intended to be discussed  at the May IEP Team meeting  after Ms. Benson had an opportunity to explore what options

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might be available.  Although  the Written Notice of the March 101  meeting does reference the
transition meeting  planned for May when the Student's special education  program at LMS would be reviewed, it does not specifically reference a review of the PE program. That explicit reference could have help assuage the Parents' concerns about this area, but it nevertheless seems clear that the Student's PE program in LMS, among several  other aspects of his middle school program,  will be reviewed at that meeting. Once a decision is reached, if the Parents continue  to be dissatisfied that the program set forth in the Student's IEP does not adequately address his needs with regard to PE in LMS, the Parents will again have the opportunity to bring the dispute to a due process proceeding.

Allegation #3: Failure to utilize the Student's IEP Team as the vehicle for determining the appropriate ESY services for the Student during 2015 in violation of MUSER §§Vl.2.J(4), X.2.A(7)
NO VIOLATION FOUND

With this allegation,  the Parents  contend that the District made determinations regarding  the Student's ESY program  without  first discussing  them at the IEP Team meeting.  To the extent that the Parents' complaint is based on the particulars of the summer  program as to duration and frequency, it is clearly  stated in the Written Notice that the Student's Middle School program,  "starting this summer," would be reviewed  at the May IEP Team meeting. As the ESY program  would not be implemented until after that meeting, no violation  is found with regard to those IEP components.

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The Parents' primary concern, however, appears to be the determination that the Student
would receive OT and PT consultation services during the summer program, rather than direct services. The decision to change the character of the services the Student would receive from direct to consultation was fully discussed at the IEP Team meeting, and the change was to go into effect following that meeting, thus canying over to the ESY program. The Parents' substantive objections to that decision are discussed in connection with the allegations above.

Allegation #4: Failure to utilize the Student's IEP Team as the vehicle for determining  the amounts of specially designed instruction and consult services for the Student in violation of MUSER §§VI.2.J(4)
NO VIOLATION FOUND

This allegation stems in part from the Parents' misunderstanding of the change in the IEP with respect to the identified amount of specially designed instruction. While the number of

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minutes has decreased from the previous IEP to the IEP developed at the March 101

meeting,

the District explained in their response to the Parents' complaint that the previous IEP assumed that the Student received this instruction for the entire school day, when in fact the Student participates in the general education setting (with ed tech supp01t) for morning meeting, art, music and PE. The District therefore simply calculated the amount of time spent in the general education setting and subtracted it from the total school hours, with specially designed instruction provided during all the remaining hours. This does 110t represent a change in the Student's programming, only a correction of an error in computation and presentation, and thus did not require IEP Team discussion. Still, an explicit reference to that change at the IEP Team meeting would have helped the Parents understand the change in numbers when they saw the IEP, and might have avoided this dispute.

The remaining concern expressed by the Parents was the failure in the IEP to identify  the time during which the Student's special education teacher would consult with the Student's ed techs. Pursuant to MUSER §10.2.A(6), all ed techs are required to be supervised by the classroom teacher. This mandatory supervision, however, is not a service to the Student, and
is not recorded in the IEP; it is, rather, a function of the certification status of the ed techs. There is, therefore, no requirement that it be discussed at the IEP Team meeting.

Allegation #5: Failure to develop the IEP in conformity with the determinations of the IEP team with respect to communication, instructional strategies and assessments in violation of MUSER §VI.2.J(4)
NO VIOLATION FOUND

This allegation is based primarily on the Parents' belief that the reference to provision of curriculum-based assessments in the IEP is contrary to an IEP Team determination that the Student would be exempt from all state and local assessments. The Parents believe that they elected to "opt out" of all assessments of the Student, but they misunderstand the scope of that election. The IEP makes clear that the Student will not participate in assessments that are administered across the school or across the state. The Student's teachers, however, must be able to assess whether the Student is grasping the skills or information that is being taught. This is a fundamental tool of teaching, and parents do not have the authority to take it away.

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Furthermore, special education law requires that a student's progress on goals must be assessed and reported to parents.  Curriculum-based assessments are one of the measures used by teachers  to measure that progress.  One of the Student's reading goals, for example, states that progress will be measured by "teacher  observation and curriculum-based assessments."

Allegation #6: Failure to adequately  consider the concerns of the parent in the IEP decision making process in violation  of MUSER §§VI.2(I)  and IX.3.C(l)(b)
NO VIOLATION FOUND

This allegation  appears to have resulted from the determination to postpone decision making about the Student's PE program  at LMS, among several other issues, until the May transition meeting.  As previously  noted, the Written Notice did not expressly  reference PEas one of the issues that would be reviewed  at that meeting,  and a more detailed explanation might well have avoided  this dispute.  This is particularly  so as school staff members agree that a regular PE class at LMS would not be appropriate for the Student, yet that understanding is not recorded  in any section  of the Written Notice or the IEP. Nevertheless, it is clear that the Parents' concerns in this area were considered,  and that there would be further discussion at the May meeting before the Student moved to LMS.

VIII. Corrective Action Plan

As no violations were found,  none is required.