Docstoc

Return to Report THE PARENTS OF XXXX XXXX THE CHARLES COUNTY

Document Sample
Return to Report THE PARENTS OF XXXX XXXX THE CHARLES COUNTY Powered By Docstoc
					                                                                                  Return to Report

THE PARENTS OF XXXX XXXX                       *   BEFORE JAMES W. POWER,

       v.                                      *   AN ADMINISTRATIVE LAW JUDGE

THE CHARLES COUNTY                             *   OF THE MARYLAND OFFICE

PUBLIC SCHOOLS                                 *   OF ADMINISTRATIVE HEARINGS

                                               *   OAH NO.: MSDE-CHAS-OT-200200293

*      *       *       *       *       *      *       *       *       *       *       *      *

                                            DECISION

                                 STATEMENT OF THE CASE
                                         ISSUES
                                SUMMARY OF THE EVIDENCE
                                    FINDINGS OF FACT
                                       DISCUSSION
                                  CONCLUSIONS OF LAW
                                         ORDER

                                   STATEMENT OF THE CASE

       This case arises from a request on July 30, 2002 by XXXX and XXXX XXXX

("Parents"), on behalf of [the Student], for a hearing to review the identification, evaluation or

placement of [the Student], a X year old autistic child.

       James W. Power, Administrative Law Judge ("ALJ") conducted a hearing on August 26

and 27, 2002 at the Charles County Public Schools Administration (“CCPS”) building in

Laplata, Maryland, and on August 29 and 30, 2002 the Office of Administrative Hearings, Hunt

Valley, Maryland, pursuant to the Individuals With Disabilities Education Act ("IDEA")

Reauthorization, Disabilities Education Act Amendments of 1997, 20 U.S.C.A. § 1415(f) (2000);

34 C.F.R. § 300.510 (1999); Md. Code Ann., Educ. § 8-413 (1999); Maryland State Department

of Education Guidelines for Maryland Special Education Mediation/Due Process Hearings. The
Partie s agreed that the deadline for issuing a decision would be 60 days from the date of the

appeal. 1

        Edmund O’Meally, Esq. represented the CCPS. The Parents were represented by Wayne

D. Steedman, Esq. Procedure in this case is governed by the contested case provisions of the

Administrative Procedure Act, and the Rules of Procedure of the Office of Administrative

Hearings. Md. Code Ann., State Gov't §§ 10-201 through 10-226 (1999); Code of Maryland

Regulations ("COMAR") 28.02.01.

                                                    ISSUE

        The issue is whether the Parents are entitled to tuition reimbursement for SCHOOL 1, for

the 2001-2002 school year.

                                   SUMMARY OF THE EVIDENCE

         See attached exhibit list

        Testimony

        The CCPS presented the testimony of the following individuals:

XXXX XXXX, Expert in Special Education
XXXX XXXX, Expert in Behavioral Support Services
XXXX XXXX, Expert in Special Education
Dr. XXXX XXXX, Expert in School Psychology
XXXX XXXX, Expert in Special Education
XXXX XXXX, Expert in Education Administration



1
 In the summer of 2001, the CCPS requested a due process hearing after being notified that [the Student] was being
placed in SCHOOL 1. The Parents field a Motion to Dismiss on the grounds there was no controversy at the time.
An Administrative Law Judge granted the Parents’ Motion and found the CCPS did not have a right request a
hearing. Charles County Public Schools v XXXX, OAH, MSDE-CHAS-OT-200100364. On August 1, 2002, the
United States District Court for the District of Maryland reversed the Administrative Law Judge’s decision and
decided that the school system had a right to a hearing in the summer of 2001. XXXX v Charles County Public
Schools, No. [number]. In the meantime, the Parents filed their own request for a hearing on July 30, 2002.

                                                        2
       The Parents, XXXX and XXXX XXXX testified and presented the testimony of the

following individuals:

XXXX XXXX, Home Therapist
XXXX XXXX, Expert is School Psychology
XXXX XXXX, SCHOOL 1
XXXX XXXX, Special Educator from SCHOOL 1
XXXX XXXX, Expert in Special Education
XXXX XXXX, Admission Specialist, SCHOOL 2
Dr. XXXX XXXX, Expert in Autism
XXXX XXXX, Expert in Autism


                                      FINDINGS OF FACT

       Based upon the evidence presented, I find the following facts by a preponderance of the

evidence:

1. [The Student] is a X-year-old autistic child who has been found eligible, for special

   education services.

2. [The Student] is easily distracted. Due to this distractibility, usual methods of measuring

   intelligence such as the WISC cannot be used. However, his level of cognitive ability, as

   measured by other testing shows he function substantially below his chronological age.

3. [The Student] is an auditory learner, which is not typical of autistic children

4. [The Student] learns particularly well when the learning is linked to events or people from

   his own family or community.

5. From January to April, 2000, [the Student] attended the XXXX Program for Disabled

   Children (“[program]”) in the CCPS. He was taken out of that program because of

   difficulties in the staff instructing him and reinforcing negative behaviors.


                                                 3
6. After April, 2000, [the Student] was home schooled with the assistance of an in home

   assistant who provided support in the area of Applied Behavioral Applications (“ABA”).

7. In October, 2000, an IEP Meeting was held. At that meeting, the Parents and school system

   were both represented by counsel. Both the school personnel and Parents’ experts and

   consultants were in attendance. The meeting lasted for several hours.

8. Prior to October, 2000, CCPS had hired Dr. XXXX XXXX to train its staff in the area of

   “discrete trials.” This is a behavior modification form of instruction, which uses repetition of

   a given task and a form of reward. Tasks are mastered to a certain degree of success before

   moving on to the next task.

9. By October, 2000, the CCPS had made progress in the training of discreet trial, but according

   to Dr. XXXX were not yet fully trained.

10. The parties reached a compromise at the October, 2000 IEP meeting. [The Student] would be

   placed at SCHOOL 2 and the Parents would waive their right to the stay put provision of the

   law.

11. The IEP developed and agreed to by the parties in October is adopted by reference herein. It

   contained feeding goals and objectives. It called for a one on one aide, “as needed”, which

   did not mean a specific individual who would be assigned to [the Student] at all times of the

   day.

12. The Parents agreed to and signed the October, 2000 IEP.

13. In January, 2001, [the Student] began SCHOOL 2 in a program for autistic children. At

   SCHOOL 2 [the Student] did not have a one to one aid.

14. The Parents wanted [the Student] to attend SCHOOL 2 for the summer of 2001. CCPS

   wanted [the Student] to attend the CCPS extended school year program, which was actually

                                                 4
   longer than the SCHOOL 2 program.

15. The school system and Parents agreed that [the Student] would attend the summer program at

   SCHOOL 2. CCPS assumed responsibility for the SCHOOL 2 Program from January the

   through the summer of 2001.

16. At the IEP meeting in October, 2000, it was agreed and understood by the parties that the

   SCHOOL 2 placement would only be until the end of the 2000-2001 school year.

17. In April, 2001 Dr. XXXX indicated in writing to CCPS that its staff was sufficiently trained

   in the area of discreet trial.

18. Dr. XXXX also trained Ms. XXXX, who in addition to teaching discreet trial would serve as

   a trainer of others in the school system in discrete trial methodology.

19. On May 18, 2001 an IEP meeting was held. At that meeting the parties were represented by

   counsel. CCPS proposed the [program] at SCHOOL 3.

20. The [program] is not a program specifically for autistic children, but includes children with

   other moderate or severe disabilities. The use of discrete trial is one part of the program, and

   is usually done on a one on one basis when the teacher is introducing the child to a new task.

21. The [program] involved a special education teacher with three aides in a special education

   classroom. This is in addition to the speech/language and occupational therapist that would

   be in the room.

22. In July, 2001 the Parents notified the CCPS that it intended to enroll [the Student] at

   SCHOOL 1 in XXXX, Maryland.

23. [The Student] attended SCHOOL 1 for the entire 2001-2002 school year. SCHOOL 1 is a

   two and one half- hour drive from [the Student]’s home in Charles County.

24. SCHOOL 1 adopted and implemented in its entirety, the IEP from October, 2000 developed

                                                 5
   in the CCPS.

25. At the beginning of the school year [the Student] did not have a one to one aid.

26. [The Student] did not start Ritalin until November 2001. The use of Ritalin improved [the

   Student]’s ability to learn by improving his attention.

27. For the first two months of the 2001 school year, [the Student] did not achieve success and

   achieved an insignificant number of goals in discreet trials.

28. As a result of Ritalin, a one on one aide, and the opportunity to work with [the Student] for

   the remainder of the 2001- school year, he began achieving in a significant way in discreet

   trials at SCHOOL 1.

29. The Parents refused the CCPS staff the opportunity to observe [the Student] at SCHOOL 1

   and refused to attend an October, 2001 IEP meeting offered by the CCPS at SCHOOL 1.

                                          DISCUSSION

       [The Student] is a X-year old autistic child who has been found eligible for special

education services. Standard indicators of cognitive ability, such as the Wechsler Intelligence

Test for Children (“WISC”) cannot be given, due to [the Student]’s distractibility. [The

Student]’s functional ability is significantly below his chronological age.

       [The Student] at one time was in the [program] in the Charles County Schools from

January to April 2000. He was taken out of this program and schooled at home with assistance of

a behavioral support specialist.

       CCPS had retained the services of Dr. XXXX XXXX to provide training to school

personnel in the area of “discreet trials.” While behavior modification has been used as a

method of managing students’ behavior, discreet trial was an effort to use this methodology as an

actual form of instruction. It involves repetition of tasks with various rewards until a child has

                                                  6
mastered a skill. As explained by XXXX XXXX, the CCPS Support Specialist who was trained

by Dr. XXXX, it is a good way of imparting basis skills to individuals such as [the Student], who

essentially require a behavior modification method of instruction.

       At an October, 2000 IEP meeting, CCPS felt its personnel had been sufficiently trained to

provide [the Student] these services within the CCPS. Dr. XXXX expressed a different view, and

indicated that the CCPS personnel had made progress, but were not quite ready to assume full

responsibility for [the Student]’s instruction.

       The October, 2000 IEP meeting, like all the IEP meetings, lasted many hours and

involved numerous professional retained by both the Parents and Schools system. Dr. XXXX

himself was retained by both parties as a consultant. The meeting resulted in a compromise, by

which CCPS would agree to fund a private placement for [the Student] for the remainder of the

2000-2001 school year, and the Parents would waive the stay-put provision. SCHOOL 2 was

selected as the placement for the remainder of the year. CCPS assumed financial responsibility

for this placement, but made clear at the October, 2000 meeting that this placement was only for

the remainder of the 2000-2001 school year.

       In the summer of 2001, the Parents wanted [the Student] to attend the summer program at

SCHOOL 2. CCPS wanted [the Student] to attend the CCPS extended school year program,

which was actually longer than the SCHOOL 2 program. The parties again reached a

compromise and CCPS agreed to fund the SCHOOL 2 program for the summer of 2001.

       By the end of the 2000-2001 school year, the CCPS school personnel who had been

training with Dr. XXXX, were determined by Dr. XXXX, to be sufficiently trained in the area of

discreet trial. In May, the CCPS selected the [program] at SCHOOL 3 as the appropriate

placement. This program involved a special educator with three aids, in a class of 6 to 8

                                                  7
children, as well as the other support personnel, such as speech language and occupational

therapy. The IEP stated that [the Student] would receive one to one assistance “as needed”.

          In July, 2001, the Parents notified CCPS that they intended to send [the Student] to

SCHOOL 1 in XXXX, Maryland. Despite another IEP meeting in August, 2001, the Parents

insisted that [the Student] attend SCHOOL 1.

          An individual who has little or no relationship to a situation is sometimes blamed for the

ensuing conflicts which arise from that situation. This is an experience which many have had at

some point in life. While the Parents request tuition reimbursement for SCHOOL 1, and allege

numerous procedural errors on the part of CCPS, as well as harassment by school personnel, the

denial of the schools system to let them view the [program] placement, and an improper IEP

meeting, this entire case is actually about parents who did not want a teacher whom they never

met, to teach their child. The sole basis for the Parents claim in this case, is that a first year

teacher, whose name remains unknown, did not testify or provide any relevant information to

this hearing, is incompetent as a matter of law, to teach a child with disabilities in a public

school.

          The intent of Congress in passing the Individuals with Disabilities Education Act

("IDEA") was to identify and evaluate handicapped children, and to provide them with access to

the type of free, public education that would be sufficient to confer some educational benefit

upon the handicapped child. Board of Education v. Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034,

3051, 73 L.Ed.2d 690 (1981).

          The primary purpose of the law is to provide access for special education students to the

general curriculum. This access is supposed to be individualized and involve the use of special

education services.

                                                    8
       [The Student] is clearly a child who needs close supervision and instruction with

specialized services. The Parents and school system do not disagree over the goals and objective

of the IEP, or the services. Nor do they disagree over the use of the discreet trial methodology.

       With respect to the issue of tuition reimbursement, requested by the Parents in this case,

the Supreme Court stated in Burlington v. Dept. Educ., 471 U.S. 359, 372 (1982):

               The Act contemplates that such education will be provided where possible
       in regular public schools, with the child participating as much as possible in the
       same activities as nonhandicapped children, but the Act also provides for
       placement in private schools at public expense where this is not possible. In a
       case where a court decides that a private placement wanted by the parents was
       proper under the Act and that an IEP calling for placement in a public school was
       inappropriate, it seems clear beyond cavil that "appropriate" relief would include
       a prospective injunction directing the school officials to develop and implement at
       public expense an IEP placing the child in a private school.


       The issue of tuition reimbursement is in many ways a form of risk taking. This was

expressed by the court in Burlington.

                This is not to say that 1415(e)(3) has no effect on parents. While we doubt
       that this provision would authorize a court to order parents to leave their child in
       a particular placement, we think it operates in such a way that parents who
       unilaterally change their child’s placement during the pendency of review
       proceedings, without the consent of state or local official, do so at their own
       financial risk. If the courts ultimately determine that the IEP proposed by the
       school official was appropriate, the parents would be barred from obtaining
       reimbursement for any interim period in which their child’s placement violated
       1415(e)(3). Burlington 372.

       The local school system is likewise at risk, since it bears the financial burden of paying

for a private placement, if its IEP and placement is found to be inappropriate.

        The Parents attempt to use the peripheral issues mentioned above, in the hope that they

will obscure the basic lack of evidence on the more essential issues.

        The Parents in this case, as well as their experts, were given more than sufficient time to


                                                 9
observe the SCHOOL 3 Program. The Parents had previously taken [the Student] to the

[program] and they were clearly aware of what the program involved. Both Parents and experts

were given repeated opportunities to visit the CCPS placement. Although CCPS has a policy of

limiting observations to 30 minutes, the Parents in this case were sometimes given the

opportunity of extended visits up to an hour. In one instance, the child’s expert failed to attend

the observation, because he went to the wrong location. The Parents clearly knew what the

SCHOOL 3 Program was and the reason for sending [the Student] to SCHOOL 1 was in no way

related a lack of familiarity with the program

        The notion that [the Student] was somehow dismissed from SCHOOL 2 in the summer of

2001, due to harassment from CCPS is also incorrect. The Parents contend that CCPS officials

spent an inordinate amount of time observing [the Student] at SCHOOL 2, which led to

SCHOOL 2 officials complaining about the close scrutiny. 2 On this issue, I totally discredit the

testimony of Mrs. XXXX, who clearly was putting words into the mouths of SCHOOL 2

officials. Mr. XXXX, the Educational Coordinator at SCHOOL 2, did not testify, but his words

at the May, 2001 IEP meeting were recorded by not one, but two attorneys. Mr. XXXX went to

great pain to explain that he never used the term “harassment”. What he did say, and

which was understandable, is that teachers have a difficult time performing well in “legalistic

situations.”

         The “legalistic situation” however, was not due solely to the school system, but to the

Parents as well, who had an attorney, recorded every IEP meeting and performed the exact same

2
  The parties engaged in a contest comparing the observation times of the CCPS at SCHOOL 2 versus the time given
the parents’ experts at SCHOOL 3. However, this is another example of the Parents utilizing a misleading
comparison. The purpose of going to SCHOOL 3 was to observe the program, not [the Student]. CCPS personnel
went to SCHOOL 2, not to see the program but to see [the Student]. Additionally, SCHOOL 2 has two way mirrors,


                                                      10
legal functions as counsel for the school system.

           Ms. XXXX, the Admission Specialist at SCHOOL 2, did testify and stated that she had

no problems with the CCPS personnel and that they acted in a professional manner at all times.

           In fact, SCHOOL 2 was unable to accept [the Student] for the 2001 school year due to

staff turnover and the lack of space in an appropriate room.

        The Parents’ contention that the IEP was inappropriate because Ms. XXXX, a special

education administrator, signed it instead of the special education teacher, is also misplaced.

Although an administrator cannot sign an IEP in place of the special educator, or appear on their

behalf, this logically presumes that such a person exists. One cannot substitute for someone who

does not exist. [The Student] did not have a special education teacher because he was either

being educated at home or was at SCHOOL 2, and there was no CCPS special education teacher

as such.

        Another non- issue is the Parents contention that they “had a gun to their head” in

October, 2000 when they negotiated a deal with the school system for SCHOOL 2. The Parents

assert they were forced into waiving their right to “stay put”, and that such legal negotiations are

somehow illegal or “inappropriate” during an IEP meeting. The “stay put” provisions however

do not bar parties from making other arrangements. [The regulation] does not permit a child’s

placement to be changed during the complaint procedure proceeding, unless the parents and

agency agree otherwise. 34 C.F.R. 300.513 note.

           If anyone had a “gun to its head” in October, 2000 it was the school system not the

parents. CCPS was in a position in which its personnel were not adequately trained in the area of

discrete trial, and it may well not have been able to provide an appropriate placement at that


which mean that observers can view for any period of time without disrupting the educational program.
                                                       11
time. They also were aware of this vulnerability, because Dr. XXXX had told them at the IEP

meeting that their people were not yet ready to engage in discreet trial.

         The parents however, had a right to a due process hearing at which time they would

probably have prevailed, because the school system was essentially conceding that SCHOOL 2

would be the appropriate placement. The ensuing deal, although happening during an IEP

meeting, happened with the full knowledge, consent and advise of the Parents’ counsel, who now

contends that such dealings are somehow sacrilegious during the IEP rituals.

         The Parents in this case were not hesitant to place [the Student] in private school if they

though that was what appropriate. [The Student] did not start at SCHOOL 2 until January, 2001.

Had the Parents exercised their due process rights, in October, 2000, they would have obtained,

not only the tuition reimbursement for SCHOOL 2, but attorney fees as well by the start of

2001. SCHOOL 2, in turn, would have become the approved placement and the subject of “stay-

put”. 3 34 C.F.R. 300.513.

         However, the Parents response as to why they did not do this, but felt they were

“coerced” in October, 2000, can only be termed implausible. When the school system requested

an expedited hearing in the fall of 2001, the Parents could not be bothered and cried poverty.

When asked why they did not go to a due process hearing in October, 2000, if they were giving

up some valuable right, the Parents responded that such a hearing would “take too long”. In fact,

both the law and facts were clearly in favor of the Parents in October, 2000. Such was not the

case in the fall of 2001.

         The Parents’ assertion that CCPS had some type of hostility toward them may or may not

3
 This would have also changed the school system’s legal basis with respect to its right to a hearing in the summer of
2002, because the school system at that time would have been proposing a change from the last approved placement,


                                                         12
be true. I find nothing in the transcripts of the meetings or the record to substantiate this.

However, Congress did not entrust school systems to provide an appropriate education in a

vacuum, but enacted an extremely detailed and elaborate procedural system, ensuring that school

systems meet the demands of the IDEA.

         But the IDEA is not a guarantee that Parents will make friends or people will never have

personal conflicts, simply that parents can participate in the process and be heard.

         What is documented in the record, however, are instances where I believe the Parents

acted out of nothing more than the same vengeance they attribute to school system. They denied

the school system access to observe [the Student] at SCHOOL 1, they took legal action to fend

off judicial review of their decision in the fall of 2001, and they rejected an IEP meeting offer

from the school system, in October 2001, to be held at SCHOOL 1. 4

         The hostility of CCPS officials mentioned by the parents at this point in time, is certainly

not supported by the record of past events. Ms. XXXX XXXX, one of the Parents’ witnesses,

alluded to one statement at the October, 2000 IEP meeting when a CCPS individual made a

disparaging remark to the parents. While I don’t have the audiotape of that meeting, a review of

the transcript does not reveal anything resembling what Ms. XXXX was alleging. If anything

disparaging was said to the Parents at that time, when they were represented by counsel, they

certainly didn’t indicate it at the time.

        The Parents and school system actually worked collaboratively for many months. On

two occasions they reached compromises which were satisfactory to both sides. Although there



i.e. SCHOOL 2, which would have changed the legal basis for its request for a due process hearing.
4
  The reason given for not allowing the CCPS staff to observe [the Student] at SCHOOL 1 is as implausible as the
reasons they gave for many things during the hearing. They maintain they were “offended” that the CCPS had
contacted SCHOOL 1 to observe [the Student], instead of contacting them directly.

                                                       13
were delays in scheduling meetings and obtaining information, these delays were due to the

schedules and difficulties of people on both sides, not just the school system.

        The issues raised by the parents about medication and feeding protocols are likewise

unfounded. [The Student] did not have a medication regimen because he wasn’t on medication

when the IEP was developed in October, 2000. He didn’t start Ritalin until November, 2001

when he was at SCHOOL 1. Nor did he have feeding protocol although there were feeding goals

and objectives on his IEP.

        The Parents’ assertion that their views were not considered, is nothing more than the

claim their position was not adopted. The Parents’ experts were clearly afforded the opportunity

to attend all IEP meetings. Not only were the Parents aware of their rights, but they clearly

availed themselves of them by retaining experts who participated in the IEP process. If these

individuals chose not to attend an entire meeting and leave early, it was not because they were

coerced into doing so. “Congress expressly recognized that tha t in many instances the process of

providing special education and related services to handicapped children is not guaranteed to

produce any particular outcome.” Board of Educa. v Rowley, 458 U.S. 192 (1982).

        The most serious concern the parents had, and one which they certainly had a right to be

concerned, was that [the Student] had been in the [program] from January to April, 2000. It is

certainly understandable that the Parents would have concerns about [the Student] going back to

program in which so much difficulty. Having listened to the witnesses, I have no doubt that part

of the reason [the Student] had difficulties was in fact the lack of training by CCPS personnel in

2000.

        However, a placement decision is not a game of chess in which pieces are forever

removed from the board until the only one left is a private school. On the contrary, the law

                                                14
requires that a continuum of placements be available at all times for the child, so that all are

available at any point in the child’s life. 34 C.F.R. 300.551.

        There are basically two aspects to the appropriateness of a placement, the nature of the

child and nature of the placement. Both are subject to change over time.

        [The Student] had problems with the [program] to the point where he was home

schooled. However, in January, 2001 he went to SCHOOL 2 in a program for autistic children.

By the end of his time there, the plan by SCHOOL 2 was to put him in a program with children

who had other neurological problems, i.e., a program not simply for autistic children. Therefore,

[the Student] had been able to transition from home, to some type of educational institution,

since SCHOOL 2 is in fact “a school”, to a program with other types of disabled children. This

describes the [program].

        [The Student]’s ability to function within an educational setting was different in the

summer of 2001 than it had been in January, 2000.

        Likewise, the CCPS had undertaken training with Dr. XXXX to improve the training of

its staff with respect to discreet trial. In April, 2001, one month before the May, 2001 IEP

Meeting at which the [program] Placement was proposed, Dr. XXXX had indicated in writing

that the CCPS were sufficiently trained. Dr. XXXX had no qualms about voicing his objections

about the CCPS staff, because he had done so at the October 2000 IEP Meeting.

        Additionally, the one thing, which was known in May, 2001 is that the teacher [the

Student] had in January, 2000 was in all likelihood not the same one he would have in

September, 2001. A placement decision must be based upon the child’s current level of

performance, not information from year and a half earlier.

        The reason the Parents sent [the Student] to SCHOOL 1 and are seeking tuition

                                                 15
reimbursement is not related to any of the above issues. Quite simply, the Parents and school

system disagree over what is the legally appropriate placement for [the Student] during the 2001-

2002 school year. There should be no shame in this disagreement, or need to stand behind

fabricated excuses or the hollow cry that the Parents “really wanted to send [the Student] to the

CCPS” when in fact they did not. IDEA clearly contemplates that Parents and school officials

will disagree on this issue.

         Unlike school systems, which can only make placement decisions after a detailed process

and at a certain time, Parents have a right to make placement decisions any time they wish. There

is nothing illegal or in any way “wrong” with Parents personally deciding that a particular

system cannot meet the needs of their child.

          A Parent is well within his right to decide months before an IEP Meeting that the child is

not going to the public placement and will be in a private school. The appropriateness of the

public placement is not determined by whether the parents actually observed it or not. Indeed,

IDEA does not place any affirmative duties on Parents whatsoever, with the exception of

notifying the school system of its intention to place the child in a private school ten days before

placement. 5 They are simply given the opportunity to participate, but are not required to do so.

         In terms of IDEA, I cannot conclude that the parents are guilty of bad faith simply

because they may have decided as early as April, 2000 that [the Student] was not going to the

[program]. Theoretically, Parents can make such decisions, and as long as they do not

affirmatively interfere with the school system’s ability to evaluate the child, not attend the




 5 Judge Motz did not specifically cite this statutory requirement, but it is certainly consistent with his reasoning. I
see no reason why school system are to be notified of a private placement, other than to help it fulfill its legal
obligations in a timely manner, which in turn requires an expeditious, not as delayed due process hearing.

                                                           16
subsequent school system meetings and simply show up at a due process hearing. 6 “Without

some minimal cooperation, a school district cannot conduct an evaluation of a disabled child as

in contemplated under the IDEA.” Patricia P., v Bd. of Educ. of Oak Park, 203 F.3d 462, 468

(2000)

         At a due process hearing, however, the parties will take their chances under the

Burlington standard, and regardless of who prevails, the appropriateness of the public placement

is not determined by who a made the correct decision first, but simply who made the correct

decision.

         Of course, showing up at a legal proceeding requires witnesses. The Parents’ emphatic

claim that they were denied access to view the [program] placement, because they needed to

make some type of informed educational decision is simply an excuse for the real issue. The

Parents had already made their decision by July, 2001, if not earlier. The need for individuals

such as Dr. XXXX and Dr. XXXX to observe the [program] placement was not to advise the

Parents about whether to send [the Student] to [program] because that decision had been made.

         IDEA confers significant procedural and legal benefits to Parents. It does not confer the

benefit of tactical or strategic trial tactics to them. The Parents in this case simply miscalculated,

and did not know that the school system was going to call their bluff in the summer of 2001 and

request a due process hearing. At that time, the Parents witnesses would have had little or

nothing to say about the appropriateness of the school system’s placement, which eventually

boiled down to whether the Parents liked the teacher or not.

         While the Parents choice of sending [the Student] to SCHOOL 1, and the timing of it, is

6
  A Parent’s failure to participate in the IEP process however is far different than his or her affirmatively placing
obstacles to the school systems creating and developing an IEP, such as denying the school system the opportunity


                                                         17
within their right, a witness in any type of legal proceeding who testifies under oath is subject to

scrutiny, especially when their actions are inconsistent with their testimony. In drawing an

adverse inference from the Parents testimony and behavior after [the Student] was placed at

SCHOOL 1, I in no way imply that they violated the law or are in some way barred from tuition

reimbursement because they violated some affirmative duty, since they had none. But they were

less than honest.

         But the underlying legal issue eventually surfaces, despite any amount of peripheral ones.

In comparing [program] and SCHOOL 1, there is in fact no difference, except that SCHOOL 1 is

too restrictive an environment. Attending SCHOOL 1 would involve five hours of bus rides and

be totally outside the community where [the Student] lives. He would have no contact with

nondisabled peers. Ms. XXXX, the special education teacher at SCHOOL 1, also noted that [the

Student] learns particularly well when the learning is linked to events or people that have

significance in [the Student]’s life. These would include events related his family or life in

Charles County. It remains unclear why he needs to be in XXXX, Maryland when people and

events in Charles County would provide a better opportunity for [the Student] to learn.

         Although SCHOOL 1 is a twelve- month program, CCPS offers extended school year

services which would create the equivalent of such a program. It should also be noted that in the

summer of 2001, the parents actually opted for the shorter summer program at SCHOOL 2,

instead of the longer one at CCPS.

         [The Student] attended SCHOOL 1 in 2001 with the same IEP he had at CCPS. The

method of instruction, discreet trial was the same at SCHOOL 1 as at CCPS. The student ratio

was not one to one at either SCHOOL 1 or CCPS. However, there were sufficient personnel in


to observe the child in the private placement.
                                                 18
each location to assure that [the Student]’s needs would be attended to.

       The Parents could not articulate any real difference between SCHOOL 1 and the

[program]. The differences they did cite involved issues unrelated to IEP issues, such as the

observation policy of SCHOOL 1 versus that of CCPS.

        Throughout the hearing they made an issue of [the Student] needing a one on one aide.

They wanted this written into the IEP and it appeared that this was the true stumbling block

between the parties. The IEP stated that [the Student] would receive one on one attention “when

needed”. The Parents were not satisfied with this.

        Yet on direct examination, Mrs. XXXX stated that a one on one aide was not really what

concerned her. When asked what did, she reverted to generalities and provided nothing specific

about how the program at SCHOOL 3 differed from that at SCHOOL 1.

        According to Dr. XXXX, the educational consultant retained in the fall of 2001, [the

Student] needed a one on one aide. When asked whether this individual should always be the

same person, she responded “yes”. She was then confronted with the fact that that [the Student]

did not have the same aide all the time at SCHOOL 1. She then responded by saying in such a

situation the various aides must be perfectly coordinated to ensure that they deal with him in the

proper manner. She clearly implied in her testimony that this method was not the preferred one

and she could see no value in having [the Student] being assigned various aides.

        In fact, the deliberate rotation of aides is not done at SCHOOL 1 simply because the staff

there feel like doing it. As explained by Ms. XXXX, [the Student]s’ teacher at SCHOOL 1, this

is done in order for the child to generalize and learn why this person, no matter who it happens to

be at a particular time, is there. This sounds strangely similar to the school system’s rationale

that having the same person with [the Student] at all times creates dependency on the part of the

                                                 19
child. In fact, the program at SCHOOL 3 is more similar to the one at SCHOOL 1, than to what

Dr. XXXX recommended, because at SCHOOL 3, [the Student] would not be assigned a

particular person but would assisted by which ever aide was available. 7

         The Parents also called Dr. XXXX XXXX to explain the difference between the CCPS

program and SCHOOL 1.

         According to Dr. XXXX, the difficulty with the CCPS placement is that the room had

children with a wide spectrum of severe disabilities. This in turn “stressed” the staff, since they

could not attend to the needs of such a disparate group. According to her, [the Student] needs a

program for autistic children.

         When pressed to explain what a “program for autistic children” was, Dr. XXXX’

response was couched in terms of educational management, not educational research. According

to Dr. XXXX, [the Student] should be in a class with other autistic children, because it reduces

the stress on the staff. Implicit in this response is the assumption that children with the same

category of disability must somehow present similar behaviors to school staff. Since the

behaviors or issues presented by children with the same disability must be similar, the staff in

turn can more easily handle these demands.

         When asked to explain how this problem of staff dealing with a disparate group of

children arose in the CCPS placement, Dr. XXXX was only able to cite one example, which

involved a child with a feeding tube. One time during her observation at [program], a nurse


7
  The aim of education is independence, not dependence upon either family or society in general. This was
recognized by Congress as a core value in the enactment of IDEA. A necessary skill in attaining this goal of
independence is the ability to generalize beyond a concrete situation and engage in some degree of abstract
thinking. [The Student] is a child who will no doubt require adult assistance and support throughout his life, and
whose ability to engage in abstract thinking is clearly limited. It is precisely for this reason that his ability to
understand the role of adults in general within his life, and attain some degree of independence in this area, is not a
minor educational achievement.

                                                           20
entered the room and fed the child through the tube, presenting a distraction to others in the

room. She also testified that SCHOOL 1 program had children with other issues, such as eating,

although she quickly added that the staff at SCHOOL 1 were quickly able to deal with the issue.

          In fact, the staff at SCHOOL 1 evidently had significant problems handling [the Student]

because they eventually placed him with an aide, but not until trying instruction in smaller

groups.

          But the significant aspect of this observation has nothing to do with the other children

being autistic or no t autistic. [The Student] is clearly unaware of whatever disabilities other

children have. The significant aspect of this observation is simply that [the Student] can be

distracted. He can be distracted by an autistic child as easily as a child with some other disability.

The critical issue is not the disability the other children have, but whether sufficient staff are

available to deal with him when he becomes distracted.

          When asked if it would be appropriate to place [the Student] in a program with other

autistic children, based on his disability, Dr. XXXX’ response was, “why not?”.

          The use of categorical labels and the provision of special education services based on

these categories is the reason why special education was changed with the enactment of IDEA.

Children cannot be provided services based on the belief that children with the same disability all

act the same and therefore can be taught in the same manner. Yet this was exactly the rationale

of Dr. XXXX. The issue is not finding the easiest way for a school to provide special education,

but finding the appropriate way for an individual child to learn. There are no doubt many school

administrators who wish providing special education was simply matter of matching students

with disabilities to classrooms with similar signs. Yet educators today realize that this is legally



                                                  21
and practically impossible.

       I gave Dr. XXXX the opportunity provide some educational basis, or insight into autistic

children which would justify an individual placement of [the Student], based upon some research

of autistic children. She provided none. Her response was nothing more than the belief that

children with the same label must behave the same way.

        Ironically, it was Ms. XXXX, [the Student]’s teacher at SCHOOL 1, who provided the

type of insight which eluded Dr. XXXX. According to Ms. XXXX, [the Student] is an auditory

learner, which she stated is different than most autistic children. If this is the case, then it make

even less sense to say that he needs a program for autistic children, based on the assumption that

he learns the way the typical autistic child learns.

            The purposes of this title are-

                        (1)(A) To ensure that all children with disabilities have available
            to them a free appropriate public education that emphasizes special education
            and related services designed to meet their unique needs and prepare them for
            employment and independent living. 20 U.S.C. 33-1400(10)(d).

       Categorical labels and “unique needs” are by definition incompatible. One cannot attend

to “unique needs” if the only basis for doing so is based upon the belief that individuals with a

shared label behave the same.

        The use of categories of disabilities is also incompatible with the dictates of IDEA, that to

the extent possible, children with disabilities be educated with children who have no disabilities,

i.e. children with no labels. Under 34 C.F.R. Sec. 300.550, special classes, separate schooling or

other removal of children with disabilities from the regular educational environment occurs only

when the nature or severity of the disability is such that education in regular classes with the use

of supplementary aids and services cannot be achieved satisfactorily. There is nothing in the


                                                  22
nature of discreet trials, which requires that it only be performed in a private school. Yet Dr.

XXXX suggested this when she stated that as a matter of educational policy, it would be

impossible for a staff, such as the one at SCHOOL 3, to adequately teach [the Student], given the

diverse disabilities of children in the room.

        Both Dr. XXXX, the autism specialist who trained the CPPS personnel and Dr. XXXX,

the CCPS School Psychologist, were correct when they stated that the issue is not the name of

the program, but the nature of the services. The important aspect of the placement is whether the

methods of instruction and services are appropriate to the unique needs of the child. The IDEA

charges the school with developing an appropriate education, not with coming up with a proper

label with which to describe [the child’s] multiple disabilities. Heather S. v Wisconsin, 125 F.3d

1045, 1055 (7th Cir. 1997).

       Ms. XXXX, the admission specialist at SCHOOL 2, testified that while at SCHOOL 2,

[the Student] was in a program for autistic children. However, she then stated that the plan for

[the Student], had he stayed at SCHOOL 2, was to be moved to a program with children who had

other neurological disorders. Unfortunately, there was no space in this room for [the Student].

SCHOOL 2 was moving away from a program strictly for autistic children and toward a

program, which resembled the make up of the CCPS placement.

        Dr. XXXX’ solution totally igno res the “least restrictive environment” dictate of the law

and immediately places [the Student] in an “autistic program” with no consideration even given

as to possible contact with non-disabled students.

        “An IEP is a snapshot, not a retrospective. In striving for “appropriateness”, an IEP must

take into account what was, and what was not objectively reasonable when the snapshot was

taken, that is, at the time the IEP was promulgated…Correctly understood, the correlative

                                                 23
requirements of educatio nal benefit and least restrictive environment operate in tandem to create

a continuum of educational possibilities. Roland M. v The Concord School Committee, 910 F 2d

983, 987 (1st Cir. 1990).

        This principle was cited by Judge Motz in this case, when he wrote: “ Theoretically, the

success (or lack of success) of a child in the school where the parents unilaterally placed him

during the year for which they are seeking reimbursement should not be considered in deciding

the reimbursement claim since the appropriateness of the board’s proposed placement should

only be judged by what information the board possessed before the school year began.” XXXX

v. Charles County Board of Education at FN5.

        The Parents’ resort to the expertise of their witnesses, and the suggestion that somehow

the testimony of these witnesses resolves the case in their favor because of their “independence”,

and the fact they are not “hired guns” obscures the larger issues.

        Dr. XXXX, the Psychologist presented by the Parents, is not what I term an independent

witness. She was called to testify for no other purpose than to say that [the Student] needs a

program for autistic children because he is labeled autistic.

        Dr. XXXX’s testimony is ir relevant because she did not enter the scene until September,

2001, well after the relevant events of this case. However, her testimony was strangely

reminiscent of the mother’s testimony, especially on the issue of the need for the same one on

one aide to accompany [the Student], which no other expert witness in the hearing seemed to

subscribe to.

        The witnesses from SCHOOL 1 are indeed independent, but their testimony is irrelevant

to the issue of the appropriateness of the CCPS placement decision, because they were not part

of that process.

                                                 24
       The testimony of Dr. XXXX is relevant, but must be put into context. Although Dr.

XXXX testified that SCHOOL 1 was appropriate at the present time, that is not the issue in the

present hearing. He also testified that the teacher he observed at the [program] placement on

September 11, 2001 was not appropriately applying discreet trial.

       The situation as it existed in the summer of 2001, was very different than it was on

August 30, 2002.

       In the fall of 2001, SCHOOL 1 had shown little success in working with [the Student].

Ms. XXXX, [the Student]’s teacher at SCHOOL 1, was unable to achieve any significant gains

in the behavioral objectives. But [the Student] had not started Ritalin and did not have a one to

one aid. Ms. XXXX’s experience of working with [the Student] only consisted of several weeks.

        In the fall of 2001, Dr. XXXX would have been presented with a situation which was far

different than as he testified on August, 2002. He would have faced a private school which had

the child, not on Ritalin, but was unable to make progress, and a public school which did not

have the child, but had problems with its teaching methodology. Dr. XXXX did testify that he

did not think [the Student] needed a program for autistic children. What was important was the

method of instruction.

       Had Dr. XXXX observed the SCHOOL 3 Placement earlier, it simply means that he

would have appeared at a May, 2001 IEP meeting and provided the same criticisms of the CCPS

personnel that he observed in September. Even this is uncertain, because the particular teacher

that Dr. XXXX would have observed in May would clearly not have been the same teacher he

observed in September.

       But he certainly could not have provided an opinion about SCHOOL 1, because

SCHOOL 1 did not exist for purposes of this hearing in May, 2001.

                                                25
        The Parents’ contention that Dr. XXXX is objective is absolutely correct. He would not

have appeared at a due process hearing or IEP meeting in the fall of 2001 with a crystal ball and

tried to prognosticate [the Student]’s future.

       While Dr. XXXX may well have believed that SCHOOL 1 offered a better opportunity

for [the Student], that issue is irrelevant. The question which should have been asked a year ago,

but was not, is whether Dr. XXXX thought that the training and intervention needed to improve

discreet trials could have been done within the CCPS placement, notwithstanding the teaching

errors he observed.

       Of course, no one, not even Dr. XXXX knows what his candid opinion, would have been

in 2001 on this issue, because the Parents ensured there was no due process hearing and they

rejected the school system’s offer of an IEP meeting at SCHOOL 1 in October, 2001.

       The fact that training is required under these circumstances does not mean the CCPS

placement is inappropriate. Ms. XXXX had been trained by Dr. XXXX as the classroom

resource person who would provide the classroom supports to the teacher doing the instruction. I

saw no evidence of her “incompetency”. Every witness who testified about discrete trials stated

that ongoing training is itself a part of discreet trial methodology. Even SCHOOL 1 has a

training manual which is used to train teachers and is used as a reference.

        This is not a case, as was implied by the Parents, of an English teacher being put into a

Mathematics classroom and being told to teach Calculus.

       The Parents’ contention that they were denied the ability to find out what the placement

at SCHOOL 3 really was, is in fact a subterfuge. The Parents knew where the building was. They

didn’t’ need to hire Dr. XXXX in September, 2001 to learn that it was in fact a temporary

classroom building. They knew the staffing ratio and the services provided. They knew from

                                                 26
prior experience the make up of children in the class. They knew the methodology, discrete trial

which was to be used. They also knew the individual, Dr. XXXX, who was doing the training of

the CCSP personnel. The only thing not known, was the teacher.

        The Parents’ exasperation in asking “where is this teacher that CCPS had?”, is but

another example of their misunderstanding of the law. As stated by Judge Motz in his decision, a

due process hearing where two new placements are being considered, should ideally be under

circumstances where no teacher is trotted into the hearing room. It should occur at a time prior to

or shortly after the student arrives at a new placement, and should involve an examination of the

placements, not the personalities of the teachers.

        Instead, we have the exact situation which Judge Motz warns against as being

inappropriate, i.e all those familiar with the child’s recent school performance come from the

private school.

        When pressed to show what reasonably was known in the summer of 2001, that would

cause the CCPS school system to suddenly conclude that its placement was inappropriate, Mr.

Steedman resorted to the only argument left, which was to accuse everyone at CCPS of being

incompetent. Sometimes an emotional outburst will reveal the true legal basis, or lack thereof,

of a party. He said this, because in fact there was nothing known in the summer of 2001 which

would cause the school system, which had just been told by Dr. XXXX that its staff had been

properly trained, to suddenly conclude that its placement was wrong. Mr. Steedman’s Freudian

slip, was in fact an admission that this entire case centers around a teacher who nobody knows,

and in fact whose expertise is irrelevant to this case.

        Competence presumes the opportunity to perform a skill. What can be said with certainty

is that in the summer of 2001, the teacher selected by CCPS was not incompetent, because she

                                                  27
had yet to teach. The Parents assume that more experienced teacher necessarily yields better

educational results, which may well be true. However, there are many experienced teachers who

are incompetent, and worse yet, not amenable to supervision, which the discrete trial

methodology requires.

          The Parents have no right to select the age, race religion or experience of the teacher. The

appropriateness of the placement is not determined by whether the parents approve of him or her.

          The county board shall employ individuals in the position that the county board considers

necessary for the operation of the public schools in the county. The Superintendent shall

nominate for appointment by the county board all principals, teachers and other certificated

personnel and assign them to their positions in the schools. Md. Code. Ann Educ. § 6-201(b).

(1999).

                 We would anticipate that, in all likelihood, only on rare occasions, could a
                 Plaintiff establish that an individual instructor was not only the cause of
                 the disabled student’s inability to progress, but also the causative factor in
                 preventing that student from obtaining an appropriate education in the
                 future, so as to warrant a Court’s intrusion upon a School District’s
                 undeniably strong interest in selecting instructors who are most suitable to
                 a disabled student’s needs. Similar, we suspect that the availability of
                 alternatives such as compensatory education, or in service training for
                 instructors, would render the removal of a given teacher as a most
                 extraordinary remedy. Moubry v Indep. Sch. Dist. No. 696(ELY, 951)
                 F.Supp. 867, 885 (D.Minn. 1996).


          The regulations require that the State use its own highest requirements to determine the

standards appropriate to personnel whom provide special education and related services under

this part. The regulations do not require States to set any specified training standard, such as a

master’s degree, for employment of personnel who provide services under this part. 34 C.F.R.

300.153, Note.


                                                   28
        Whatever failure [the Student] had for the first two months of the 2001 school year, could

clearly not be attributed to the incompetence of a new teacher, because [the Student] was not on

Ritalin, did not have a one to one aid and was not achieving success under Ms. XXXX, who is a

six year teacher. The Parents’ entire case, rests on the assumption that a first year teacher is

incompetent and as a matter law, to teach an autistic child in a public school.

       The examination of evidence and its proper consideration to the legal issue of the case

takes on more significance in this case, given its unique procedural posture. After receiving

notice that the Parents were going to send [the Student] to SCHOOL 1, CCPS attempted to

request a due process hearing in the summer of 2001. Had that hearing occurred in a timely

manner, the evidentiary record would have included little if any of what happened at SCHOOL

1. Indeed, the holding of such a hearing, prior to the start of the school year would have involved

the comparison of two programs, without any evidence at to how [the Student] was doing in

either program.

        In his decision reversing the denial of the school system’s request for a hearing, Judge

Motz alludes to the policy behind an expeditious resolution of disagreements between parents

and school systems.

                      It may be, as the XXXX complain, that a school board’s right to
               have a placement dispute timely resolved by an ALJ inconveniences
               parent like themselves who would like to make a unilateral placement of
               their child in a private school and litigate the question of their right to
               reimbursement at a time of their own choosing. That fact alone, however,
               hardly provides a basis for judicial nullification of the regulations creating
               the board’s right to demand a due process hearing. To the contrary, the
               regulations are wholly consistent with the terms, purposes, and policy
               underpinnings of the IDEA, and a court’s failure to uphold them for the
               convenience of a child’s parents would constitute an arbitrary exercise of
               its power…
                      [P]arents who seek public funding for their child’s special education
               possess no veto over a school board’s decision. The very premise of the

                                                 29
               IDEA is that the duty to develop individualized education programs and to
               make placement decision resides in the public educational agencies
               themselves…..Necessarily concomitant with that duty is the existence of
               the opportunity and the power to perform it. If parents were able to
               withdraw their child from the public school at which the school board
               determined he could receive a free appropriate public education for the
               duration of a school year and insulate their actions from prompt review by
               delaying their request for due process hearing for their reimbursement
               claim, the board’s fulfillment of its statutory obligations would be
               impaired in two critical respect. First, during the course of the then current
               school year, the board would not be providing the child an education at the
               school it had determined to be appropriate. Second, the teachers who
               would be providing information for consideration in developing the
               following year’s IPE based upon personal knowledge of the child’s most
               recent academic performance would be from the school chosen by the
               parents, not the one selected by the board. In both instances, decision
               making authority would be transferred from the board, upon whom the
               statutory duty to make the decision is imposed, to the child’s parents who,
               until and unless their entitlement to public benefits, have an important but
               merely consultative role in the placement decision.


       Judge Motz then explains in a footnote, that the benefit of a hearing, at or near the start of

the school year would provide the parents the option of sending the child back to public school

for the second semester of the year, assuming they did not prevail in their claim for

reimbursement and assuming the ALJ’s decision was rendered prior to the start of the second

semester.

        The Parents in this case however, were not concerned with their options during the year.

They insulated their action by avoiding litigation of the issue. Although the Parents suggest that

they could not afford to hire an attorney to represent them at a due process hearing in the fall of

2001, they nevertheless had retained an attorney throughout the entire proceedings, even when

there was no litigation. They were paying for SCHOOL 1 and in fact retained an attorney who

represented them in an effort to fend off a hearing in the fall of 2001. They had already made the

decision to send [the Student] to SCHOOL 1 and he was already at the school which the Parents

                                                 30
were completely happy with, yet they could afford to hire another educational consultant , Dr.

XXXX, for a decision that had already been made.

        More importantly, they may not have been quite sure of what Dr. XXXX, who was also

retained by the school system, might testify to in the summer or fall of 2001.

        There is a corollary to Judge Motz’s decision, and it does not involve the options of the

Parents, but the options of the school system. The school system like the Parents have a

financial risk involved in this litigation, but they also have primary responsibility for providing

[the Student] a public education.

        [The Student]’s IEP, which he took to SCHOOL 1 was the same one developed with

CCPS. Ms. XXXX, from SCHOOL 1, stated that the IEP from CCPS was adopted in it entirety

and implemented as written. SCHOOL 1 had the advantage of working with [the Student] and

adjusted its program based on its experience of working with him. While there were various IEP

goals objective dropped or added from the IEP , this was done after the staff at SCHOOL 1 had

the opportunity to work with [the Student].

        If the school system had the opportunity to work with [the Student], it would have had

the same benefit of first hand experience with him that SCHOOL 1 had. On this point the

testimony of Dr. XXXX must be discarded. She attempted to compare [the Student] in the

[program] based upon the observation of the program in November, 2001. Her efforts at

“visualization” however, are exactly what the law does not allow. Had the CCPS staff been given

the opportunity to work with [the Student] the first two months of the year, and with he addition

of Ritalin, which the staff at SCHOOL 1 had after November, there is no way for anyone to

“visualize” what would have been happening.

       Dr. XXXX’s testimony also presumes that a new teacher will ignore the specific

                                                 31
interventions of a supervisor, who could provide feedback and corrections for teaching errors. 8

        The Parents did not expect SCHOOL 1 to make educational decisions based upon what

happened in CCPS, but based upon their own experience with [the Student], after they worked

with him. Yet they denied the school system this very opportunity. The placement decision by

the school system in October, 2001, is based solely upon what was happening at SCHOOL 1.

One cannot simply presume that even this decision would have been the same if [the Student]

had been in the [program], since a placement decision in October, 2001 would have been based

upon the school system’s own experience of dealing with [the Student]. The school system was

not even afforded the opportunity to observe [the Student] in October, 2001, let alone work with

him at that time.

        “If a student’s parents want him to receive special education under the IDEA, they must

allow the school itself to reevaluate the student and they cannot force the school system to rely

solely on an independent evaluation.” Andress c. Cleveland Indeped. Sch. Dist., 64 F.3d 176, 178

(5th Cir. 1995). “Accordingly we hold that that parents, because of their failure to cooperate, do

not allow a school system reasonable opportunity to evaluate the disabled child, forfeit their

claim for reimbursement for a unilateral private placement. Patricia P., v Bd. of Educ. of Oak

Park, 203 F.3d 462, 469 (2000).

       In his closing argument, Mr. Steedman indicated that he was getting “steamed”. Given

his inability to address the relevant questions, which were in fact pointed, with anything

resembling evidence, this is understandable. By that point of the proceedings, all the nonessential

and peripheral issues had been stripped away, and he was left to explain what basis his client had

to claim tuition reimbursement, given the appropriate law and evidence to be considered. In fact



                                                32
he had no answer.

        What Mr. Steedman should appreicate however, is that others involved, such as school

personnel and even Administrative Law Judges, also get frustrated, when they spend four days

peeling a legal onion in search the of the core issue, and find that it is one that can be resolved in

ten minutes, and is not even a unique issue with respect to special education.

        In an emotional plea, the Parents request tuition reimbursement because they should not

have “to sacrifice their child to failure”. Yet this is what they did at SCHOOL 1 for the first part

of the 2001 school year. They further implore that tuition reimbursement should be granted

because the school system should not be allowed to “get away” with an allegedly pernicious and

harassing course of conduct. They further plead in an attempt to instill guilt, that I should not

“send [the Student] back to the Charles County Public Schools”, totally ignoring the fact that the

Parents never consulted anyone before taking him out of the Charles County Schools.

        When attorneys start claiming that they “don’t use hired guns “, and resort to emotional

pleas, it usually indicates that the use reason in light of evidence has reached its limitations. If

anyone is trying to “get away” with anything, it is the Parents, not the school system.

        The Parents insulated their action from judicial review and created an evidentiary record

which is mostly irrelevant and consists of nothing but the child’s performance at SCHOOL 1.

This is what Judge Motz alluded to when he stated that such action results in the Parents trying

“veto” the school system’s action.

        The Parents now hope to find a sympathetic ear, who will consider irrelevant evidence,

ignore the clear dictates of the law and apply misleading comparisons, all in a crusade to avenge

the wrongs committed by an allegedly incompetent school system, whose only incompetence

was that it had to hire a first year teacher.

                                                  33
         If there are any second thoughts, or soul searching to be done, it should be by the Parents.

They had the opportunity a year ago to resolve this entire issue and determine where [the

Student] would be and who would pay for it. They showed no concern at the time, yet now they

act as if this an issue of dire consequence.

         If there is a lesson to be taught however, it is not to school systems but to parents. The

financial risks of Burlington are real, and should not be lightly undertaken. The Parents will

receive nothing more or less than what they are entitled to in this case, which is a decision based

upon the appropriate law and the relevant evidence.

        I conclude that the placement proposed by CCPS was appropriate and at the requirement

of Rowley and IDEA. I further conclude that SCHOOL 1 is an inappropriate placement, because

it is too restrictive.

                                    CONCLUSIONS OF LAW

        Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law

that the IEP and placement of the CCPS from May, 2001, for [the Student] at SCHOOL 3 is

appropriate. Board of Education v. Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 3051, 73

L.Ed.2d 690 (1981).

         I further conclude that SCHOOL 1 is not appropriate, because it is not the least restrictive

environment. 34 C.F.R. Sec. 300.550

                                               ORDER

         I ORDER that the appeal be DISMISSED.



September 16, 2002                              _________________________________
Date                                            James W. Power
                                                Administrative Law Judge

                                                  34
JWP/grm



                                       APPEAL RIGHTS

        Any party aggrieved by this Final Decision of the Maryland State Department of
Education may appeal it by filing a petition for judicial review with the circuit court for the
county where the child resides or the United States District Court for Maryland, without regard
to the amount in controversy, within one hundred eighty (180) days after the date that notice of
the decision is sent. Md. Code Ann., Educ. § 8-413(h) (1999).




                                                35

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:9
posted:7/8/2011
language:English
pages:35