Petition for Writ of Certiorari — Roland M. v. Concord School Committee

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In The

Supreme Court of the United States.

OCTOBER TERM 1990

ROLAND M. and MIRIAM M.,

PETITIONERS

THE CONCORD SCHOOL COMMITTEE, ET AL.,

RESPONDENTS

Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit.

DAVID BERMAN

100 GEORGE P. HASSETT DRIVE

MEDFORD, MASSACHUSETTS 02155-3297

(617) 395-7520

Attorney for the Petitioners

Questions Presented.

1. Is appellate review of a district court decision in an

action under the Education of the Handicapped Act (EHA),

20 U.S.C. §1415(e)(2), that an Individual Educational Plan

(IEP) is adequate and appropriate, de novo, where the

district court heard the case only on the State administrative

record?

2. Is the jurisdictional time limitation contained in a state

administrative procedure act to be applied in determining

the timeliness of a cross-claim by a local school committee

attacking so much of a decision of a state agency hearing

IEP appeals as decides that parents of a handicapped child

are entitled to reimbursement?

3. Is a party entitled to present additional testimony in

the nature of expert witnesses to the District Court in an

action brought under EHA where the testimony offered by

these witnesses was not part of the administrative record?

4. Should a court of appeals be required to rehear en

bane any case in which a panel of that court has decided a

question of law so as to create a conflict among the circuits?

Table of Contents

Citations to opinions below

Jurisdiction

Statutory citations

Statement of the case

Amplification of reasons relied on for the

allowance of ihe writ

Review by a court of Appeals of a decision of

a United States District Court determining

that an IEP developed for a handicapped

child is adequate and appropriate is de

novo,especially where no evidence other

than theadministrative records and the

administrative decision has been received

by the court.

The Court of Appeals should have held

thatConcord's cross-claim was time barred.

lll.The lower court's holding that Petitioners

could not offer expert testimony to the

District Court to show that neither IEP

involved an appropriate placement for

Matthew effectively leaves districtcourt

proceedings under 20 U.S.C. §1415(e)(2)

as a form of review confined to the record, in

direct contravention of this Court's ruling in

Hendrick Hudson District Board of

ionv. Rowley, 458 U.S. 176

(1982).

IV. A Court of Appeals should rehear en banc

anycase in which a panel has decided a

question of law so as to create a conflict

among the circuits.

Conclusion

Oo WwW NM NW

i TABLE OF AUTHORITIES CITED

Statutory Addendum 19

Opinions below 1a (follows page 28)

Table of Authorities Cited.

Cases.

Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir.

1979) cert. denied 446 U.S. 919 (1980) 17,18

Adler by. Adler v. Education Department of New

York, 760 F.2d 454, 457-458 (2d Cir. 1985) 12

Amherst-Pelham Regional School Commn. v.

Department of Education, 376 Mass. 480, 485,

495, 381 N.E.2d 922 (1978) 14n

Asarco, Inc. v. United States E.P.A., 616 F.2d

1153, 1161 (9th Cir. 1980) 11

Barwacz v. Michigan Dept. of Education, 681

F.Supp. 427 430-431 (W.D. Mich. 1988) 17

Baumgartner v. United States, 322 U.S. 665, 670-

671 (1944) 10

Beyer v. LeFevre, 186 U.S. 114, 117, 119 (1902) 10

Board of Regents, University of New York v.

Tomanio, 446 U.S. 478, 482, 486 (1980) 13

Bose Corp. v. Consumers Union of United States,

Inc. 466 U.S. 485, 500 n. 16 10

Brown Transport Corp. v. Atcon, Inc. 438 U.S.

1014. 18

Burke County Bd. of Education v. Denton, 895

F.2d 974, 981 (4th Cir. 1990) 17

Burlington v. Department of Education, 736 F.2d

773, (1984) 10n,15,17

Chieders v. Joseph, 842 F.2d 689, 693 (3rd Cir.

1988) 11

Department of Education v. Carl D., 695 F.2d

1154, 1157 (9th Cir. 1983) 11,12

Department of Education, State of Hawaii v.

Katherine D., 727 F.2d 808, 814 n.2 (9th Cir.

1983) a

iii TABLE OF AUTHORITIES CITED

Diebold v. Civil Service Comm., 611 F.2d. 697,

699 (8th Cir. 1979)

Flynn v. Contributory Retirement Appeals Board,

17 Mass. App. Ct. 668, 669-670, 461 N.E. 2d

1225, 1227 (1984)

Gregory K. v. Longview School Dist., 811 F.2d.

1307,1310 (9th Cir. 1987)

Group Insurance Conmn.. v. Labor Relations

Commn. 381 Mass. 199, 206-207, 408 N.E. 2d

851 (1980)

Hardin v. Straub, 109 S.Ct. 1998, 2000 (1989)

Hendrick Hudson District Board ot Education v.

Rowley, 458 U.S. 176 (1982)

Janzen v. Knox County Board of Education, 790

F.2d 484, 488 (6th Cir. 1986)

Johnson v. Railway Express Ageney, 421U.S. 454,

464 (1975)

Lachman v. Illinois State Board of Edueation, 852

F.2d 290, 293 (7th Cir. 1988)

Metropoliton Govt of Nashville and Davidson City

V. Cook, 917 F 2d 232 (6th Cir 1990).

Morris v. Giimer, 129 U.S. 315, 325-326 (1889)

Sabin v. Butz, 515 F.2d 1061, 1067 (lOth Cir.

1975)

Schimmel by Schimmel v. Spillane, 819 F.2d 477,

480 (4th Cir. 1987)

Securities & Exchange Comm. v. Belmont Reid &

Co., Inc., 794 F.2d 1388, 1390 (9th Cir. 1986)

Spiegler v. District of Columbia, 856 F.2d 462, —

463-464 (D.C. Cir. 1989)

Tackitt v. Prudential Ins. Co. of America 758 F 2d

1572 (11th Cir 1985)

United States v. Coleman, 707 F.2d 374, 380 (9th

Cir. 1983)

Virginia Agr. Growers Ass'n, Ine. v. Donovan, 774

F.2d 89, 93 (4th Cir. 1985)

12,12n

Westland Housing Corp. v. Commissioner of Insurance, 346

Mass. 556, 558,194 N.E. 13

iv TABLE OF AUTHORITIES CITED

Wilson v. Marana Unified Sehool DistrietNo. 6 of Pima

County, 735 F.2d 1178, 1181 (9th Cir. 1984)

Statutes

20 U.S.C., sl400(c)

sl415(b)-(d)

sl415(e)(2)

28 U.S.C., $l254(1)

Massachusetts General Laws

c. 30A, §14(1)

Bules of Court

Federal Rules of Civil Procedure

Rule 52(a)

Rule 59

Federal Rules of Appellate Procedure

Rule 28(j)

Supreme Court Rules of the United States

Rule 10.1(a)

Rule 10.1(c)

Miscellaneous

Moore's Federal Practice 52.05(1]

Wright and Miller, Federal Practice and

Procedure, Volme 9, Ch. 7

12,13n,14n

9,17

ane Pliny

No.

In The

Supreme Court of the United

States.

ROLAND M. and MIRIAM M.,

Petitioners,

THE CONCORD SCHOOL COMMITTEE, ET AL.,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit.

Petitioners pray that a writ of certiorari issue to review and

reverse a judgment of the United States Court of Appeals

for the First Circuit issued on August 3, 1990 and orders of

September 14, 1990 denying a petition for rehearing and

rehearing en banc.

Citations to Opinions Below.

The following opinions are reprinted in the recorded ap-

pendix. They are unreported unless otherwise noted.

1.Amended Decision of the Bureau of Special Education

Appeals of the Commonwealth of Massachusetts dated June

11, 1987 as amended on June 29, 1987.

2. Decision of the Bureau of Special Education Appeals

of the Commonwealth of Massachusetts dated July 24, 1987.

3. Decision of the Bureau of Special Education Appeals

of the Commonwealth of Massachusetts dated August 24,

1988.

4. Pre-trial Order of the United States District Court for

the District of Massachusetts, Zobel, J., dated danuary 19,

1989.

5. Order allowing Motion In Limine precluding Plaintiffs

from presenting expert witnesses (Endorsement dated

March 3, 1989 on Concord's motion).

6. Memorandum of Decision of the United States District

Court, Zobel, J., for the District of Massachusetts dated

October 27, 1989.

7. Opinion of the United States Court of or the First Circuit

dated Augus* 3, 1990 and reported at 910 F.2d 983 (Ist Cir.

1990).

8. Judgment of the United States Court of Appeals for

the First Circuit entered August 3,1990.

9. Opinion of the United States Court of Appeals for First

Circuit denying a Motion for Rehearing and Rehearing En

Bane dated September 14, 1990.

Jurisdiction

On August 3, 1990 the United States Court of Appeals for

the First Circuit entered judgment affirming a judgment of the

United States District Court for the District of Massachusetts.

Plaintiffs filed and served a Motion for Rehearing and a

separate Suggestion of Rehearing En Banc on August 17,

1990. On September 14, 1990 the Petition for Rehearing

and the Suggestion of Rehearing En Banc were denied.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254/(1).

Statutory Citations.

A Statutory Addendum Begins on page 19

Statement of the Case.

Somewhat arbitrarily, we begin our statement in the

1985-1986 school year when Matthew, a handicapped

child (whose parents are Petitioners here), was in his fifth

year in the Concord (Massachusetts) public schools

(Concord). His classroom teacher was Mr. Corey, who was

probabiy the most effective teacher that Concord had of-

fered Matthew. However, Matthew, according to his physi-

cian, suffered from a wide variety of neurological and neuro-

logicaliy engendered disorders,'! and as a result, his learn-

ing style had been characterized, through the end of the

1985-1986 school year,by great difficulty in remaining fo-

cused on the task at hand and easy susceptibility to

distraction. He was not accepted by his peers, either in or

out of school. In Mr. Corey's class Matthew's only “friend”

was a young man who often engaged in destructive and

bizarre behavior that Matthew tended to imitate.

Aside from his inability to ¢*velop peer relationships,

Matthew also demonstrated, throughout his two years in Mr.

Corey's class, inappropriate and worrisome behaviors at

home, including talking to himself for hours at a time, de-

stroying furniture and defacing walls, eating very rapidly

and sloppily, and refusing (or being unable) to take care of

himseif in basic ways including dressing. Since Matthew

was a sensitive child with considerable insight into his

problems, he was often anxious and depressed.A poor

self-image exacerbated his inappropriate behavior, which

further distanced him from his peers yet Matthew tested as

1 According to his physician, Matthew suffered from a severe at-

tention deficit disorder and a variety of other complex problems in-

cluding visuai motor, visual perceptual, visual tracing, fine motor

(e.g., handwriting), and gross motor coordination difficulties.

a student of average intelligence, and his physicians

believed he had the then unrealized potential to make

academic progress.

In 1986 Petitioners placed Matthew in an intensive

summer program at the Landmark School (Landmark), a

private school for children with learning disabilities in

Beverly, Massachusetts. He made stunning progress. By

the end of the summer, at Mr. Corey's suggestion, they re-

jected Concord's proposed placement in a public school -

Concord at this time had not yet prepared an Individual

Educational Plan (IEP) for 1986-1987 for Matinew - and en-

rolled him for the coming school year in the residential

program at Landmark The Bureau of Special Education

Appeals of the Commonwealth of Massachusetts (BESA)

held six days of hearing on the appropriate placement for

Matthew for school year 19861987. On June 29, 1987 the

hearing officer (nearing officer no. |) rendered an amended

decision (correcting a decision of June 11, 1987), which

was Clarified on July 24, 1987, after Petitioners and

Concord requested reconsideration. Her basic ruling was.

that Petitioners had justifiably placed Matthew in

Landmark's program for the first term of the 1986-1987

school year on the grounds (a) that it had been recom-

mended by a Concord teacher, Mr. Corey (b) that Concord

had made misrepresentations to Petitioners and (c) that

Concord had not prepared a timely IEP and (d) that the

placement prepared by Concord did not include, as it

should have, an after-school supplement. She also found

that the placement chosen by Concord for its public schools

was the appropriate placement for the balance of the

year.She ordered Concord to reimburse Petitioners for the

cost of placement in Landmark for the first term of 1986-

1987 (3a-9a)

Petitioners promptly filed a civil action under Title 20

U.S.C. Section 1415 (e)(2) seeking enforcement of the

reimbursement order, reversal of so much of the order as

determined Concord to be appropriate placement for the

balance of the 1986-1987 school year, and counsel fees.

On December 11, 1987, Concord, after extending on

several occasions it time to respond, filed an answer and a

cross-claim against BSEA seeking reversal of the order of

reimbursement.

In the meantime on May 16,1987, Concord, without any

request from Petitioners or before hearing officer no. 1 ren-

dered any decision, convened a team to prepare an IEP for

Matthew for 1987-1988 though he was then a student at

Landmark. Petitioners attended the team meeting. At it they

spoke glowingly of Matthew's progress in the year at

Landmark and their hopes that he would be able to remain

at Landmark for the ensuing school year. In June of 1987,

Concord prepared a "IEP," under which Matthew would

have spent the 1987-1988 school year at the Peabody

School, a Concord public school. Petitioners rejected it and

enrolled Matthew for a second year a Landmark.

In January of 1988, after the District Court called a con-

ference to schedule the case for hearing, Concord ap-

pealed the parents’ rejection of the 1987-1988 IEP to BSEA

and asked: the Court to stay its proceedings while

Concord's appeal was pending. The Court did so. Hearings

were held on February 24, March 8, March 10, March 28,

April 6, April 29 and May 25, 1988. It is clear from the tes-

timony at these hearings that both academically and so-

cially the two years that Matthew spent at the Landmark

School were the most productive and happiest years of his

life. There is no dispute that in the course of these two years

Matthew was transformed from a hostile, disagreeable child

whose behavior at home, at school and in other situations

was Often, if not always, inappropriate to a reasonably self-

disciplined child whose behavior, if not always appropriate,

was usually at least weil within the bounds that might be

expected for a child of his age and background. Matthew

even learned to like and read books.

On August 24, 1988 the hearing officer (hearing officer

no. 2) rendered a decision. Basically it held that the

Concord IEP was appropriate because (a) procedural de-

fects in Concord’s adaption of the IEP were excusable, (b)

Concord personnel have more certificates and degrees

than Landmark's and (c) Petitioners’ counsel had taken the

position at the hearings that Concord was not entitled to call

Petitioners’ experts as witnesses. (pg. 42a-48a) Petitioners

amended their already pending Complaint to include an

attack upon the 1988 decision upon seven different

grounds.

On March 3, 1989, the District Court allowed a Motion in

Limine by Concord to prevent Petitioners from offering ex-

pert testimony at trial (61a), and Petitioners filed an offer of

proof of the expert's credentials and of what their testimony,

if allowed, would be. Specifically, if permitted to testify, Dr.

Marcel Kinsbourne, a pediatric psychiatrist, pediatric neu-

rologist and a pediatrician, would have testified that he has

continued to treat with Matthew and that in his opinion ap-

propriate placement for the school year 1987-1988 was in

the residential program of the Laridmark School and that

placement of Matthew in the Concord Public Schools in ac-

cordance with Concord’s 1987-1988 IEP would have been

inappropriate.

The basis for Dr. Kinsbourne's opinion would have been

as follows: Matthew has an unusual personality disorder

and attention deficit disorder, which prior to his involvement

with the Landmark were not being addressed in the

Concord Public Schools and could not be addressed in the

Concord Public Schools. Even the most efficient instruction

of Matthew would not work in the absence of individualized

instructions, required for Matthew a 24-hour day program.

For the two years in question his needs were both social

and academic and these needs could not be separated.

Matthew was able to make significant progress at the

Landmark School, in part, because at Landmark he was

ab'e to learn strategies of getting on with his peers and,

once having mastered these strategies, was able to function

both socially and academically.

Dr. Bruce Cushna, a psychologist, would have testified

that he has continued since 1987 to treat Matthew and has

formed professional opinions concerning his appropriate

placement for the school year 1987-1988, which would

have been in Landmark's residential program and that his

placement in the Concord School according to the Concord

IEP would have been inappropriate. Matthew's return to the

Concord Public Schools would have been detrimental to

him; Concord treated Matthew while he was a student there

as if he were retarded and unable to learn; the Concord

Public Schools proved unable to cope with Matthew's prob-

lems; and the Landmark School substantially improved

Matthew's academic performance.

Dr. Michael Marcus, a psychotherapist, would have tes-

tified that placement of Matthew in the Concord Public

Schools for the school year 1986-1987 would have been

extremely detrimental to him since the Concord Schools

had caused him to have a very negative self-image and

continued exposure to the same students would have sim-

ply exacerbated the problem stemming from that negative

self-image. It was, therefore, necessary for Matthew's

placement to be changed to one in which he was sur-

rounded by other persons who shared the same problems

that he did. He would also have been expected to testify

that if the appropriate placement for Matthew for the first

term of the 1986-1987 school year was the residential

placement at the Landmark School, then transferring him in

the course of that year to the Peabody School would have

left the year as a wasted year in his education. Drs..

Kinsbourne and Cushna testified at the 1986-1987

hearings but not at the 1987-1988 hearings, whereas Dr.

Marcus testified at the 1987-1988 hearings but not the

1986-1987. The testimony of Drs.. Kinsbourne and Cushna

in the District Court concerned 1987-1988 and that of

Dr.Marcus, 1986-1987. (See pgs. 2a and 28a)

On April 7, 1989, the District Court held a “trial,” which

was in reality an oral argument with respect to the tran-

scripts of the administrative hearings and the administrative

exhibits, the administrative decisions, and the findings.

On October 27, 1989 the Court entered judgment affirm-

ing so much of BSEA's decision as found Concord's pro-

posed placement in its public schools appropriate for the

second term of 1986-1987 and all of 1987-1988 and an-

nulling so much of the decision as ordered Concord to fund

placement for the first term of 1986-1987 (73a) After denial

of a Rule 59 motion of Petitioners on November 22, 1989,

which pointed out the failure of the Court to deal with

various issues that had been raised by Petitioners,

including the issue of whether Concord's cross-claim was

time barred. Petitioners appealed.

The First Circuit heard oral argument on June 4, 1990.

On August 3, 1990 the Court, Selya, J., in an opinion joined

by Judge Bownes, affirmed.*(pg.74a) Petitioners filed a

petition for rehearing on August 17, 1990 and, on the same

day, a suggestion of rehearing en bane pointing out that the

decision was in conflict on two points with decisions in other

circuits and, on a third point, in conflict with a decision of this

Court, its own prior decision, and decisions of other circuits.

On September 14, 1990, both rehearing and rehearing en

banc were denied.(pg. 102a)

Amplification of Reasons Relied on for the

Allowance of the Writ.

I. REVIEW BY A COURT OF APPEALS OF A

DECISION OF A UNITED STATES DISTRICT

COURT DETERMINING THAT AN _ IEP

DEVELOPED FOR A HANDICAPPED CHILD IS

ADEQUATE AND APPROPRIATE IS DE

NOVO,ESPECIALLY WHERE NO EVIDENCE

OTHER THAN THE ' ADMINISTRATIVE

RECORDS AND THE ADMINISTRATIVE

DECISION HAS BEEN RECEIVED.

At oral argument, Judge Selya questioned Petitioners’

counsel about the scope of review of the District Court's

decision that the IEP’s were adequate and appropriate, and

Petitioners’ counsel replied that it was de novo. The follow-

ing day, Petitioners’ counsel sent a letter to the Clerk pur-

suant to Rule 28(j) of the F.R.A.P., citing Lachman v. Illinois

State Board of Education, 852 F. Od 290, 293 (7th Cir. 1988)

for this proposition. The Court of Appeals disagreed, hold-

ing, 910 F.2d at 990, pg. 81a:

The question of whether an JEP is “adequate and

appropriate” is a mixed question of fact and law.

Accord Lachman y, lilinois State Bd. of Educ., 852

F.2d 290, 293 (7th Cir.), cert. denied, - U.S. -, 109

S.Ct. 308, 102 L.Ed.2d 327 (1988); Gregory K. v.

2 'udge Souter, having been nominated by the President for a

seat on this Court, did not participate in the decision.

iew School Dist., 811 F.2d 1307, 1310 (9th

Cir. 1987). Like other mixed questions, measuring

the adequacy and appropriateness of an IEP asks

nisi prius to determine whether certain facts pos-

sess, or lack, legal significance in a given case. In

short, the district court is required to make an eval-

uative judgment, applying "a legal standard to a

particular set of facts.” TSC Indus... Inc. v. Northway,

Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2133, 48

L.Ed.2d 757 (1976).

Absent a showing that the wrong legal rule was

employed, we have rather consistently taken the

view that the district court's answer to a mixed

fact/law question is reviewable only for clear error.

In suggesting rehearing en banc on this point, Petitioners

also called the Court's attention to other rulings that

appeliate review of the adequacy of an IEP is de novo:

Gregory v. Longview School District ,811 F.2d 1307,1310

(9th Cir. 1987); Department of Education. State of Hawaii

v.Katherine D., 727 F.2d 809, 814 n.2 (9th Cir. 1983);

Wilson v. Marana Unified School District No. 6 of Pima

County, 735 F.2d 1178, 1181 (9th Cir. 1984).

Under Rule 10.1(a) the existence of a conflict among the

circuits is an appropriate basis for invoking this Court's

certiorari jurisdiction.Moreover, this ruling seems to be

erroneous for a number of reasons. One is that mixed ques-

tions of fact and law are not normally reviewed only for

“clear error.” Moore's Federal Practice 9 52.05[1], p.52-121

states:

When a finding is a composite of fact and law it is

not binding where the factual finding is induced by

an error of law or where, although the factual finding

is sound, the composite conclusion is based on an

error of law.

Wright and Miller, Federal Practice and Procedure,

Volume 9, Ch. 7, §2589, p.753 states:

Many issues in a law suit involve elements of both

law and fact. Whether these be referred to as mixed

questions of law and fact, or legal inferences from

the facts, or the application of law to the facts, there

is substantial authority that they are not protected by

the “clearly erroneous” rule and are freely review-

able.

A second reason is that a determination that an IEP of-

fers a child a "free appropriate public education” does no

more than repeat the language of a statute, 20 U.S.C.

§1400(c).2 Such a statement is almost by definition a

statement of law. See Beyer vy, LeFevre, 186 U.S. 114,

117, 119 (1902); Baumgartner y, United States 322 U.S.

665, 670-671 (1944).

To be sure, in some cases a determination that an IEP

offers a free appropriate public education may rest upon

findings of fact, and presumably these findings would not

under Rule 52(a) of the F.R.Civ.P. be set aside “unless

clearly erroneous.” In this case, however, the district court

had no “evidence” before it other than the evidence, testi-

monial and documentary, received by BSEA and the BSEA

decisions. As this Court stated in Bose Corp.v. Consumers

Union of United States Inc, 466 U.S. 485, 500 n.16 quoting

from Baumgartner, supra

The conaaeaas of a "finding of fact" depends on

the nature of the materials on which the finding is

based.

Where review is confined to the record, then it is subject to

the principle "that district courts are generally accorded no

deference in their review of agency actions where review is

3 it will be noted that the Court of Appeals referred to the

“adequacy and appropriateness of an IEP," but this lan-

guage, derived from the First Circuit's opinion in

y, Department of Education, 736 F.2d 773, 788 (1984) aff'd

on other grounds 471 U.S. 359 (1985), is no more than a

paraphrase of the statute.

limited to the administrative record.” Virginia Agr. Growers

Ass'n. Inc. vy. Donovan, 774 F.2d 89, 93 (4th Cir. 1985) citing

Asarco Inc, v. United States E.P.A., 616 F.2d 1153, 1161 (9th

Cir. 1980). See also Sabin y. Butz, 515 F.2d 1061, 1067

(lOth Cir. 1975).

Sabin, supra, was heard on cross motions for summary

judgment. Although neither party moved for summary judg-

ment in this case, its posture when it left the district court

was in exactly the same posture as it would have been if it

had been heard on such a motions Indeed, it is as if it had

been heard on a most unusual kind of summary judgment,

procedure, in which Petitioners were forced to accept a par-

ticular record and could offer no evidence by affidavits or

otherwise to vary that record. In these circumstances, to

refer to “findings of fact" and to speak of reviewing them

only for clear error is to assume that there was fact-finding

when there was none. That judgments based upon orders

granting summary judgment are reviewed de novo is too

clear for extended discussion. Among the recent cases are

Chieders y. Joseph, 842 F.2d 689, 693 (3rd Cir. 1988);

Diebold y, Civil Service Comm., 611 F.2d 697, 699 (8th Cir.

1979); Securities & Exchange Comm. v. Belmont Reid &

Co, ing,, 794 F.2d 1388, 1390 (9th Cir. 1986); Tackitt v.

Prudential Ins. Co. of America, 758 F.2d 1572, 1574 (llth

Cir. 1985).

II. THE COURT OF APPEALS SHOULD HAVE

HELD THAT CONCORD'S CROSS-CLAIM WAS

TIME BARRED.

Several courts have decided that the appropriate statute

of limitations to be applied to actions under Title 20 U.S.C.

§1415(e)(2) is the analogous state statute for bringing ac-

tions to review administrative decisions. Department of

Ecucation v. Cari D., 695 F.2d 1154, 1157 (9th Cir. 1983);

Adler by Adler vy. Education Department of New York, 760

F.2d 454, 457-458 (2d Cir. (1985); Spiegler y. District of

Columbia, 856 F.2d 462, 463-464 (D.C. Cir. 1989). Other

circuits, however, have rejected time limits found in

analogous state administrative procedure acts for

determining when actions under §1415(e)(2) are time

barred. See Janzen v, Knox County Board of Education,

790 F.2d 484, 488 (6th Cir. 1986) and cases discussed;

v. Spillane, 819 F.2d 477, 480 (4th

Cir. 1987). In the present case, Petitioners asked the

Court of Appeals to rule that the thirty-day time restriction

found in Mass. G.L. c.30A, §14(1) was applicable and that,

therefore, Concord's cross-claim was time barred.4 In

dictum, 910 F.2d at p.999 n.10, the First Circuit indicated

that “the timeliness of the cross-claim, if germain at all, was

likely governed not by a statute of limitations but by the

equitable doctrine of laches."(pg. 98a) The holding of the

Court on this point, however, 910 F.2d at 998-999 was that

since Petitioners did not raise the issue in their pre-trial

memorandum (although they most certainly did argue it at

the hearing held by the District Court), the point was

waived. (pg.96a-98a)

We shall assume for purposes of this argument that a

normal statute of limitations can, like any defense, be

waived and that it can be waived even if it is properly

asserted in an answer. However, as Petitioners argued in

their original brief and also in their petition for rehearing, the

4 Concord offered no disagreement. At pages 40-41 of

its brief it stated:

Although the EHA does not specifically incorporate

any timelines for the initiation of such an appeal, var-

ious courts have interpreted the civil action require-

ments as incorporating analogous state statutes for

the initiation of claims in the state courts. See, e.q.,

Spiegier y. District of Columbia, 866 F.2d 462, 463-

464 (D.C. Cir. 1989). In Massachusetts,

analogous Massachusetts statute, c.30A, §14(1), contains a

time limit that is in the nature of a jurisdictional bar.

Westland Housing Corp, vy, Commissioner of Insurance, 346

Mass. 556, 558, 194 N.E.2d 714, 716 (1963); Elynn vy.

Contributory Retirement Appeals Board, 17 Mass. App.Ct.

668, 669-670, 461 N.E.2d 1225, 1227 (1984).

Massachusetts law is also rather clear in requiring that any

party seeking to attack an agency decision file its own

timely complaint; mere intervention in the complaint of an-

other is insufficient. Group Insurance Commn., y. Labor

Belations Commn., 381 Mass.199, 206-207, 408 N.E.2d

851 (1980).

This Court has indicated on several occasions that un-

less it would defeat some Federal policy, courts “should not

unravel state limitations rules." Hardin vy. Straub, 109 S.Ct.

1998, 2000 (1989); Tyg cere Pca yom

421 U.S. 454, 464 (1975); Board of Regents University of

New York v. Tomanio, 446 U.S. 478, 482, 486 (1980). If the

time bar in G.L. c.30A, §14(1) applied, the District Court was

without jurisdiction of Concord’s cross-claim and so, of

course, was the Court of Appeals. Thus, the First Circuit

should have decided the issue squarely. Questions of juris-

diction can be raised at any time. Morris vy. Gilmer, 129 U.S.

315, 325-326 (1889).

G.L.M. c.30A, §14 governs the appeal of state ad-

ministrative proceedings to the state courts, and im-

poses a thirty (30) day limitation for the initiation of

such claims. G.L.M. c.30A, §14(1). Thus, in order to

initiate a claim for review of an administrative adjudi-

catory proceeding in the federal courts, it is arguable

that a thirty (30) day time limitation for the initiation of

such claims would be applicable.

BSEA, which had filed an answer raising the defense that

Concord's cross-claim against it (Petitioners were not par-

ties to the cross-claim) was time barred, took no formal part

whatsoever in the District Court hearing or the appeal.

On reaching the issue, the court should have ruied that

not laches but the state administrative procedure act sets

the proper time limitations for bringing any action attacking

a decision of BSEA, whether by original complaint or cross-

claim.> Petitioners recognize that actions under §1415(e)(2)

are somewhat different from the general run of petitions for

review under administrative procedures act in that the re-

viewing court is required to hear “additional evidence." See

Part Ill of the Amplification of Reasons. Nevertheless, the

primary question in most EHA cases is whether to affirm or

reverse a series of administrative decisions culminating in

the decision after the so-called "Due Process Hearing.” See

20 U.S.C. §1415(b)-(d). Moreover, to the extent that time

limits for seeking administrative review seem to be shorter

than other statutes of limitation, the requirement that any

party aggrieved by the administrative decision take prompt

action is desirable. As was stated by the First Circuit in this

case, 910 F.2d at 1000, pg. 99a:.

As the case before us aptly illustrates, placement

disputes may take years to wind their way through

the administrative/judicial labyrinth.

There is no point in lengthening this process by applying

longer statutes of limitations or indeterminate concepts such

as lacher to the time for bringing §1415(e)(2) actions.

5 There can be no doubt that if Concord’s action had been

brought in a Massachusetts court, it would have been

governed by Mass. G.L. c.30A, §14. See Amherst-

Pelham Regional School Comm. y. Department of

Education, 376 Mass. 480, 485, 495, 381 N.E.2d 922

(1978).

III. THE LOWER COURT'S HOLDING THAT

PETITIONERS COULD NOT OFFER EXPERT

TESTIMONY TO THE DISTRICT COURT TO

SHOW THAT NEITHER IEP PROPOSED AN

APPROPRIATE PLACEMENT FOR MATTHEW

EFFECTIVELY LEAVES DISTRICT COURT

PROCEEDINGS UNDER 20 U.S.C.

§1415(e)(2) AS A FORM OF REVIEW

CONFINED TO THE RECORD, IN DIRECT

CONTRAVENTION OF THIS COURT'S RULING

IN HENDRICK HUDSON DISTRICT BOARD OF

EDUCATION V. ROWLEY, 458 U.S. 176

(1982).

in School Committee of Burlington y. Department of

Education, 736 F.2d 773, 790-791 (1984), the First

Circuit, concerned ithat by offering evidence in

§1415(e)(2) proceedings parties might “undercut” the

administrative proceedings and, thus, the "due weight" to be

given to administrative decisions, effectively limited district

courts to receiving fresh testimony only in unusual circum-

stances such as “gaps in the administrative transcript ow-

ing to mechanical failure, unavailability of a witness, an

improper exclusion of evidence by the administrative

agency, and evidence concerning relevant events occur-

ring subsequent to the administrative hearing.” 736 F.2d at

790. It further stated however, id 790-791:

We decline to adopt the rule urged by defendants

that the appropriate construction is to disallow testi-

mony from all who did, or could have, testified before

the administrative hearing. We believe that, although

an appropriate limit in many cases, a rigid rule to this

effect would unduly limit a court's discretion and

constrict its ability to form the independent judgment

Congress expressly directed. A salient effect of de-

fendants’ proposed rule would be to limit expert tes-

timony to the administrative hearing. Our view of the

cases involving the Act reveals that in many in-

stances the district court found expert testimony

helpful in illuminating the nature of the controversy

and relied on it in its decisional process. There

would be some valid reasons for not presenting

some or all expert testimony before the state agency.

Experts are expensive - the parties at the state level

may feel that their cases can be adequately made

with less backup, especially since the administrative

hearing in Massachusetts is conducted by an expert.

We also recognize that in many instances experts

who have testified at the administrative hearing will

be bringing the court up to date on the child's

progress from the time of the hearing to the trial. It

would be difficult to draw a sharp line between what

had or could have been testified to at the adminis-

trative hearing and the tria! testimony.

Although this Court granted certiorari, 469 U.S. 1071

(1984), it excluded this issue, raised in the petition as the

third question, from its order.

In the present case, however, the First Circuit went

considerably further and, affirming the ruling of the District

Court, held that because Plaintiffs had made a conscious

decision not to present certain experts at the administrative

hearings, they could not offer their admittedly relevant tes-

timony in court. 910 F..2d at 996-997, pg. 92a-95a. The

result, it would appear is that except in unusual

circumstances, in the First Circuit hearings by the district

courts will be confined to review of the administrative

record. See, especially, 910 F.2d at 997,n.7, 93a-94a.

It is true that one way to give due weight to administra-

tive decisions in EHA cases would be to prevent or substan-

tially restrict the courts from receiving evidence other than

the administrative record. However, in Rowley, 458 U.S. at

205, this Court, considering the legislative history of

§1415(e)(2), not to mention its specific language, explicitly

repudiated such a restriction, “for Congress expressly re-

jected provisions that would have so severely restricted the

role of reviewing courts.” Thus, Rule 10.1(c) of the Rules of

this Court indicates that certiorari should be granted since

the First Circuit “has decided a federal question in a way

that conflicts with applicable decisions of this Court."

We have found no case that begins to place the

restrictions on receipt of “additional evidence,” Title 20

U.S.C. §1415(e)(2), that the First Circuit has imposed here.

That courts hearing actions under 20 U.S.C. §1415(e)(2)

should hear “additional” evidence, if relevant, appears to be

settled. £.q., Burke County Bd. of Education y. Denton 895

F.2d 973, 981 (4th Cir.1990). Even more recently, the Sixth

Circuit, in The Metropolitan Goverment of Nashville and

Davidson Cty, v. Cook 917 F.2d 232,234, (1990) noted,with

respect to the First Circuit's more limited holding of

Burlington, under which Petitioners should have been

permitted to offer expert testimony excluded by the District

Court,

Insofar as this language [in Burlington] suggests that

additional evidence is admissibic only in limited

circumstances, such as to supplement or fill in the

gaps in the evidence previously introduced, we

decline to adopt the position taken by the First

Circuit. “Additional,” in its ordinary usage, implies

something that is added, or something that exists by

way of addition. To “add” means to join or unite; the

limitation on what can be joined inherent in the term

“supplement” is not present in the term “add”.

Accord: Barwacz v, Michigan Dept. of Education,681

F.Supp. 427, 430-431 (W.D. Mich. 1988). That the Sixth

Circuit would not have approved the holding of the First

Circuit in the present case is a fortiori. Thus, Rule 10.1(a) is

implicated in this question as well.

lV. A COURT OF APPEALS SHOULD REHEAR EN

BANC ANY CASE IN WHICH A PANEL HAS

DECIDED A QUESTION OF LAW SO AS TO

CREATE A CONFLICT AMONG THE

CIRCUITS.

Seeking rehearing en bane, Plantiffs specifically called

the Court's attention tc Aldens. Inc. v. Milier,610 F.2d 538,

541 (8th Cir. 1979) cert. denied 446 U.S. 919 (1980).

This case holds:

Although we are not bound by another circuit's

decision, we adhere to the policy that a sister

circuit's reasoned decision deserves great weight

and precedential value. As an appellate court, we

strive to maintain uniformity in the law among the

circuits, wherever reasoned analysis will allow, thus

avoiding unnecessary burdens on the Supreme

Court docket. Unless our 11 courts of appeals are

thus willing to promote a cohesive network of

national law, needless division and confusion will

encourage further splintering and the formation of

otherwise unnecessary additional tiers in the

framework of our national court system. See

dissenting opinion of White, J., in Brown Transport

Corp y, Atcon Inc., 439 U.S. 1014, 99 S.Ct. 626, 58

L.Ed.2d 687 (1978), and the opinion of Burger, J.,

appended thereto.

Accord: United States v. Coleman.707 F.2d 374, 380 (9th

Cir. 1983) and case cited.

lf Aldens and Coleman spoke to a point of urgency and

Petitioners submit that they did one way of possibly cutting

down on conflicts among the circuits is to require that any

case in which a panel decision has created the conflict be

reheard en banc. Since with respect to point 1, the scope of

review, the Panel's decision most certainly created a

conflict among the circuits, rehearing en banc was

appropriate.

conclusion

For the reasons given a writ of certiorari should issue to

review and reverse the decision of the First Circuit.

Respectfully submitted,

DAVID BERMAN

100 George P. Hassett Dr.

Medford, MA 02155-329

Attorney for Petitioners

STATUTORY ADDENDUM

20U.S.C. §1400

(a) Purpose

lt is the purpose of this chapter to assure that all

handicapped children have available to them, within the

time periods specified in section 412(2) (B) of this title, a

free appropriate public education which emphasizes

special education and related services designed to meet

their unique needs, to assure that the rights of handicapped

children and their parents or guardians are protected, to

assist States and localities to provide for the education of all

handicapped children. and to assess and assure the

effectiveness of efforts to educate handicapped children.

20 U.S. C. §1415(b)-(d)

(b’ Required procedures; hearing

(1) The procedures required by this section shall include,

but shall not be limited to—

(A) an opportunity for the parents or guardian of a

handicapped child to examine all relevant records with

respect to the identification, evaluation, and educational

placement of the child, and the provision of a free

appropriate public education to such child, and to obtain

an independent educational evaluation of the child;

(B) procedures to protect the rights of the child

whenever the parents or guardian of the child are not

known, unavailable, or the child is a ward of the State,

including the assignment of an individual (who shall not

be an employee of the State educational agency, local

educational agency, or intermediate educational unit

involved in the education or care of the child) to act as a

surrogate for the parents or guardian;

child whenever such agency or unit—

(I) proposes to initiate or change, or

(Il) refuses to initiate or change, the identification,

evaluation, or educational placement of the child

or the provision of a free appropriate public

education to the child;

(D) procedures designed to assure that the notice

required by clause (C) fully informs the parents or

guardian, in the parents’ or guardian's native language,

unless it clearly is not feasible to do so, of all procedures

available pursuant to this section; and

(E) an opportunity to present complaints with respect to

any matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a

free appropriate public education to such child.

(2) Whenever a complaint has been received under

paragraph (l)of this subsection, the parents or guardian

shall have an opportunity for an impartial due process

hearing which shall be conducted by the State educational

agency or by the local educational agency or intermediate

educational unit, as determined by State law or by the State

educational agency No hearing conducted pursuant to the

requirements of this paragraph shall be conducted by an

employee of such agency or unit involved in the education

or care of the child.

agency

lf the hearing required in paragraph (2) of subsection (b)

of this section is conducted by a local educational agency

or an intermediate educational unit, any party aggrieved by

the findings and decision rendered in such a hearing may

appeal to the State educational agency which shall conduct

an impartial review of such hearing. The officer conducting

such review shall make an independent decision upon

completion of such review.

(d) Enumeration of rights accorded parties to

hearings

Any party to any hearing conducted pursuant to

subsections (b) and (c) of this section shall be accorded--

(I) the right to be accompanied and advised by counsel

and by individuals with special knowledge or training

with respect to the problems of handicapped children,

(2) the right to present evidence and confront, cross

examine, and compel the attendance of witnesses,

(3) the right to a written or electronic verbatim record of:

such hearing, and

(4) the right to written findings of fact and decisions

(which findings and decisions shall be made available

to the public consistent with the requirements of section

1417(c) of this title and shall also be transmitted to the

advisory panel established pursuant to section

1413(a)(12) of this title).

20 U.S.C. §1415(e)(2)

(2) Any party aggrieved by the findings and decision

made under - subsection (b) of this section who does not

have the right to an . appeal under subsection (c) of this

section, and any party aggrieved by the findings and

decision under subsection (c) of this section, shall have the

right to bring a civil action with respect to the complaint

presented pursuant to this section, which action may be

brought in any State court of competent jurisdiction or in a

district court of the United States without regard to the

amount in controversy. In any action brought under this

paragraph the court shall receive the records of the

administrative proceedings, shall hear additional evidence

at the request of a party, and, basing its decision on the

preponderance of the evidence, shall grant such relief as

the court determines is appropriate.

28 U.S.C. §1254(1)

Courts of appeals; Certiorari; appeal; certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following method:

(!) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree;

Massachusetts (General Laws c . 30A, §14( 1)

§ 14. Judicial review

Except so far as any provision of law expressly

preciudes judicial review, any person or appointing

authority aggrieved by a final decision of any agency in an

adjudicatory proceeding, whether such decision is

affirmative or negative in form, shall be entitied to a judicial

review thereof, as follows:

Where a statutory form of judicial review or appeal is

provided such statutory form shall govern in all respects,

except as to standards for review. The standards for review

shall be those set forth in paragraph (7) of this section,

except so far as statutes provide for review by trial de novo.

Insofar as the statutory form of judicial review or appeal is

silent as to procedures provided in this section, the

provisions of this section shall govern such procedures.

Where no statutory form of judicial review or appeal is

provided, judicial review shall be obtained by means of a

civil action, as follows:

(1) Proceedings for judicial review of an agency decision

shall be instituted in the superior court for the county (a)

where the plaintiffs or any of them reside or have their

principal place of business within the commonwealth, or (b)

where the agency has its principal office, or (c) of Suffolk.

The court may grant a change of venue upon good cause

shown. The action shall, except as provided in section

thirty-two of chapter six, be commenced in the court within

thirty days after receipt of notice of the final decision of the

agency or if a petition for rehearing has been timely filed

with the agency, within thirty days after receipt of notice of

agency denial of such petition for rehearing. Upon

application made within the thirty-day period or any

extension thereof, the court may for good cause shown

extend the time.

Federal Rules of Civil Procedure

Rule 52. Findings by the Court

(a) Effect. In all actions tried upon the facts without a

jury or with an advisory jury, the court shall find the facts

specially and state separately its conclusions of law there

on, and judgment shall be entered pursuant to Rule 58; and

in granting or refusing interlocutory injunctions the court

shall similarly set forth the findings of fact and conclusions

of law which constitute the grounds of its action. Requests

for findings are not necessary for purposes of review.

Findings of fact. whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity of the trial

court to judge of the credibility of the witnesses. The

findings of a master, to the extent that the court adopts them,

shall be considered as the findings of the court. It will be

sufficient if the findings of fact and conclusions of law are

stated orally and recorded in open court following the close

of the evidence or appear in an opinion or memorandum of

decision filed by the court. Findings of fact and conclusions

of law are unnecessary on decisions of motions under

Rules 12 or 56 or any other motion except as provided in

Rule 41(b).

RULES OF THE UNITED STATES

SUPREME COURT

Rule 10. Considerations Governing Review on

Writ of Certiorari

1. A review on writ of certiorari is not a matter of right, but

of judicial discretion. A petition for a writ of certiorari will be

granted only when there are special and important reasons

therefore. The following, while neither controlling nor fully

measuring the Court's discretion, indicate the character of

reasons that will be considered:

(a) When a United States court of appeals has

rendered a decision in conflict with the decision of

another United States court of appeals on the same

matter; or has decided a federal question in a way in

conflict with a state court of last resort; or has so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower

court, as to call for an exercise of this Court's power of

supervision.

appeals has decided an important question of federal

law which has not been, but should be, settled by this

Court, or has decided a federal question in a way that

conflicts with applicable decisions of this Court.

BUREAU OF SPECIAL EDUCATION APPEALS

MATTHEW M.

APPELLANT

BSEA # 87-0073

CONCORD PUBLIC SCHOOLS

APPELLEE

June 29, 1987

BEFORE

CAROL E. KERVICK, HEARING OFFICER

LAWRENCE KOTIN, ATTORNEY FOR APPELLANT

RICHARD SULLIVAN, ATTORNEY FOR APPELLEE

IN RE: MATTHEW M. BSEA # 87-0073

DECISION

This decision is written pursuant to M.G.L. Chs. 30A,

71B, PL 94-142, and the rules and regulations promulgated

thereunder.

A hearing was conducted on February 9, 10, March 12,

13, 19, and 23, 1987 in the offices of the Massachusetts

Department of Education, Quincy, MA before Carol E.

Kervick, hearing officer. The following persons were in

attendance for at least one day of the hearing.

Mr. Roland M.

Mrs. Miriam M.

Dianne Bossie

Marcel Kinsbourne

Miriam Freedman

Denise Sarault

Bruce Cushna, Ph.D.

Lawrence Kotin

Susan Carlson

Earl Corey

Denise Greene

Steve Kaplan

Anne F. Penn

Karl Pulkkinen

Kirk Swanson

Deborah Blanchard

Marie Martino

Richard Sullivan

Doug Salvesen

Parent

Court Stenographer

Pediatric Neurologist

BSEA Observer

Stenographer

Psychologist

Attorney for Parent

Director, Student

Support Services,

Concord Public Schools

Teacher, Concord

Public Schools

Concord Special

Education Teacher

Assit.Ditector Student

Services, Concord

Stenographer

Landmark School

Attorney for Concord

Observer,

Boston University

Margaret Chow-Menzer Department of

Social Services

Nancy Swiniarski Court Reporter

Carol E. Kervick Hearing Officer, BSEA

The issues to be decided are !) whether or not Concord

Public Schools has proposed an IEP for Matthew M that

provides for his educational development to the maximum

extent feasible in the least restrictive environment; 2)

whether the residential placement proposed by the parents

at the Landmark School provides for Matthew's

development to the maximum extent feasible in the least

restrictive environment.

PROFILE

Matthew is a twelve year old boy with an attention deficit

disorder and a variety of learning disabilities that affect his

ability to acquire language skills in the area of reading,

spelling, writing, and math. he exhibits deficits in visual

motor, visual tracking and fine and gross motor coordination

skills. Matthew has exhibited behavior problems of an

obsessive nature including talking to himself, ripping his

clothes, flapping his hands and speaking in a loud voice.

Since he began school he has had difficulty relating to and

being accepted by his peers.

ANALYSIS AND CONCLUSION

It is undisputed by the parties and confirmed by the

evidence that Matthew is a child with special needs and

thus is entitled to the rights and services required by federal

and state special education laws.

i find that Concord's plan is appropriate with the addition

of an offer of socialization activities after school on a regular

basis to allow Matthew to achieve success and to assist him

to develop socialization skills in an integrated setting with

normal and handicapped peers. While Concord made an

effort to include a socialization component in its 1986-1987

IEP, | find that this alone was not enough to address peer

relationship issues which clearly emerge as Matthew's

predominant need at this time. | do not minimize the

importance of Matthew's specific learning disabilities whicn

affect his ability to acquire language skills in the areas of

reading, spelling, writing and math. Similarly, the attention

deficit disorder and deficits in fine and gross motor skills

add to Matthew's complex profile. However, it is my finding

that the Concord IEP's for 1984-1985 and 1985-1986

clearly identified those needs, included appropriate goals

and objectives, and provided services that resulted in

progress described by Dr. Cushna as most astonishing.

(Exh P-73 at 2) This progress was achieved in a program

that had mainstreamed Matthew in social studies and

science for those two years, a mainstreaming component

that did not simply immerse Matthew into a regular

education program without support but allowed for

integration of a group of special needs students with both

regular and special needs teachers to assist them. The

1986-1987 IEP does not differ substantially from the

previous 2 IEP's except that it is in a middle school with

different service providers. In 1984-1985 and 1985-1986

Matthew was mainstreamed for academics for one period

four days a week. In 1986-1987 he would have been

mainstreamed for 6 periods a week for academics (science

and social studies). The other periods of mainstreaming

were for specials. Since mainstreaming was so successful

for Matthew for the previous two years | do not find an

additional 2 periods a week, for the same academics as he

participated in before, to be a defect in the plan. The law

requires that children be transitioned back into the

mainstream gradually when they demonstrate readiness

and it is clear to me that Concord's professional judgement

based on experience with Matthew was a sound one. It also

provided Matthew with the necessary content-appropriate

stimulation that he clearly needed and thrived on.

For all three IEP'’s the student teacher ratio was

appropriate and was consistent with the recommendations

of experts including Dr. Cushna and Dr. Kinsbourne. As to

the transitions that would be required of Matthew for

19861987 | find them to be less frequent and to involve

fewer professiona! service providers than at Landmark.

Other services found to be necessary for Matthew by

evaluators and Concord are lacking in the Landmark

program. While Matthew clearly benefits from occupational

therapy to enhance the development of motor skills, none is

provided at Landmark. While Concord addresses the

socialization issues, albeit not sufficiently in my judgment,

Landmark seems to take the position that with mere

exposure to other children socialization will occur

spontaneously. When observed by Concord staff at

Landmark Matthew continued to isolate himself and

Landmark staff made no effort to draw him in. | agree with

parents’ witness Dr. Cushna that Matthew needs some form

of group therapy to deal with socialization and to help him

to be “held together.” Yet none of this is offered to Matt at

Landmark, a school that primarily deals with educational

deficits related to learning disabilities. | do not see

Landmark as providing a therapeutic milieu for a child

whose major presenting problem at this time is socialization

skills.

Turning next to the issue of personnel, while Concord

staff is appropriately certified and has advanced degrees,

key staff at Landmark is uncertified. Denise Greene may not

have years of experience but | was impressed by her skills

and sensitivity (Several of the Landmark staff also have little

experience and less training). While the parents in their

closing argument take great pains to compare Mr. Coreys

class to Denise Greene's, they do not measure the

Landmark program by the same criteria. In other words, if a

small self contained class with the same teacher and the

same peers, by specific recommendation and inference,

was appropriate for Matthew, that type of program is clearly

not available at Landmark. In fact more service providers

are involved with Matthew at Landmark than in either the

Corey or the Greene program.

Based on the evidence, | find that Concord's IEP also

has a superior approach/methodology where Landmark's

focus on decoding skills could result in a regressive

situation for Matthew.

| therefore find that the Concord 502.4 placement is

superior to the Landmark 502.5 program in credentials and

experience of staff, methodology, extent and type of

services, and opportunity for mainstreaming, that would

allow for peer interaction with students in Ms. Greene's

class. Greene's students are more like Matthew in terms of

needs and levels of achievement than the students at

Landmark. Concord also provides for interactions with

normal peers through the mainstreaming component. At

Landmark Matthew is the only student who presents with

behavioral needs requiring a social tutorial.

Turning next to the issue of residential placement it is

my opinion that any reliance on the David D. case as setting

forth standards to be applied in all cases where residential

placement is at issue is to read the case too broadly. David

D. presented as a mentally retarded person whose

educational issues were issues dealt with control of

behavior needed to generalize in order to enable him to

function in society and behave appropriately in work and

social situations. David D.'s behaviors were of a sexual and

aggressive nature and needed to be extinguished or

controlled to allow him to participate in a group home and

sheltered workshop. The expertise required to accomplish

those goals could not be considered “ordinary parenting

skills."

Contrast the needs of Matthew M. While his loud

speech, occasional talking to himself, lack of interest in

dressing, and poor eating habits may be annoying to his

parents and others, they are only minimally interfering with

his day to day life and apparently not at all with his ability to

benefit from education. Matthew, unlike David D. is

functioning well in society. Further Matthew has intellectual

skills of at least an average level. And from the testimony of

Kirk Swanson who is not a behavioral management expert

we learned that the only service Matthew received in the

residential component consisted of common sense

techniques to ensure task completion. According to

Swanson what Matthew needed was attention to

organizational issues and no special qualifications were

required to provide Matthew with some structure.

Although | disagree with Dr. Kinsbourne's conclusion on

the need for residential placement, | do agree that Matthew

needs constant intervention. In his report (P-75, at 3) he

recommends:

"The need of a student like this can be addressed by

individualized tutoring but cannot be met solely by

the provision of specific educational experiences.

Social ineptitude puts him at risk of unpleasant life

experiences that could drive him into major

depression. He has a clear need for a generally

responsive and supportive milieu. Matthew's social

handicaps will not correct themselves nor would

they readily be corrected although the attempt

should continue to be made. It is necessary for staff

to be constantly at hand to intervene when Matthew

gets himself into difficult situations.”

| am troubled by the fact that Landmark staff were not

aggressively working to integrate Matthew in either the

afternoon or residential components. The fact that Matthew

now has a friend acceptable to his parents is certainly a

positive gain for Matthew. | fail to find, however, that

anything particular to the Landmark program contributed to

this development. Perhaps, as with Aron, it was simply

spending a lot of time in close proximity.

| therefore find that Matthew's needs are not so severe

as to dictate a residential placement and even if they were

or become so in the future, that Landmark is not an

appropriate service provider.

Parents raised issues of procedural! violations regarding

the development, writing and completion of the final IEP.

The facts are not clear and the issues are confusing

However | feel | need not reach those procedural issues in

order to render a decision equitable to the parents and

Concord. It was clear to the Concord staff that Mrs. M. in

particular relied heavily on Mr. Coreys’ advice during

Matthew's 2 years in his class. That she would rely on any

of his recommendations, including his support for Landmark

in July 1986, should come as no surprise to anyone. Even

though Mr. Corey's recommendations for Landmark cannot

be considered an official act or commitment, the parents

relied at least on his perception of the Landmark program

as an appropriate placement for Matthew. Corey, after

visiting the program, changed his mind as to its

appropriateness and | concur with his judgment.

It was also clear to the Concord staff that Mr. and Mrs. M.

were concerned that the 1986-1987 IEP be virtually

identical to the 1985-1986 Corey program. Corey, Kaplan

and Greene assured the parents that Greene's program

was virtually identical. | have found that, although not

identical, it was a superior program to Landmark. Because

of the parents’ confusion and reliance on statements of

Concord staff as well as Drs. Kinsbourne and Cushna, they

placed Matthew at Landmark. That seven months later

Concord has convinced this hearing officer that the 502.5 or

502.6 Landmark programs are inappropriate and the 502.4

Concord program is appropriate is irrelevant to the issue of

the right to reimbursement for a past unilateral action. The

parents reasonably relied on Mr. Corey's summer 1986

opinion when they placed Matthew in September, 1986.

Concord's IEP was not complete until January, 1987 when

fne final IEP was received by the parents. It should also be

noted that the aide was not hired until January. These

conditions were confusing and prevented the parents from

making a decision based on the totality of Concord's

proposed plan.

| find that due to the confusion over the Concord 1986-1987

plan, coupled with parents’ reliance on Corey's opinion

(even if it was offered only to get Matthew out of the home),

Mr. and Mrs. M. are entitled to be reimbursed for the

Landmark day component including the after school

activities, from September through January 1987. This

placement however shall not be considered the last agreed

upon placement for the purposes of placement pending

appeal as | have found the Concord program, with an

additional after school peer interaction program, to be a

superior one to Landmark and the Landmark program to be

inappropriate. Concord shall reconvene the TEAM to write

an IEP including after school services to provide Matthew

with meaningful opportunities for peer relationships. | will

leave it to the TEAM to determine the nature and extent of

such services.

RECONSIDERATION OF DECISION:

Reconsideration of the case may be granted upon the

showing of any serious error of law; misconstruction of the

rules, regulations and policies of the Department of

Education; or upon the discovery of material evidence

existing at the time of the hearing, but not introduced, which,

if proven, would be likely to alter the conclusion of the

decision. Written application for reconsideration of such

cases may be made by either party to the hearing officer

who heard the case and in consultation with the Director of

the Bureau of Special Education Appeals, such application

may be granted or denied within the discretion of the

Bureau. Application should be made within a reasonable

time after the decision.

EFFECT OF DECISION AND RIGHTS OF APPEAL:

Both parties have rights of appeal under P.L. 94-142 (20

U.S.C. 1401), Chapter 71B and 30A of the Massachusetts

General Laws. The parents may choose to appeal the

Decision of the Bureau to the State Advisory Commission

(SAC) by indicating such desire on the Choice of Options

form which accompanies this Decision, and submitting it

along with a written statement to the SAC of their objections

to the Bureau decision, including arguments in support of

their objections, and the evidence in the record which

supports their arguments, within the timelines specified.

Within five days of receipt of the parent's statement,

copies will be provided by the SAC to the other parties in

the case, who shall then have 10 days in which to respond

to the parents’ statement in writing to the SAC. The SAC

shall consider the appeal at its next monthly meeting

provided that it receives the appeal (including all party

statements) at least 15 days before such meeting. The

parent appeal to the State Advisory Commission is optional.

The State Advisory Commission has limited review

authority in that it will not hear new evidence in any form. It

will review the Decision of the BSEA to determine if it is

reasonable based on the evidence in the record, and is

consistent with established policy and law. The SAC must

determine whether the parties had, generally, notice of the

proceedings and an opportunity to be heard, and whether

10a

the procedural guarantees found in M.G.L. c. 71B (Chapter

766), c. 30A (State Administrative Procedures Act) and P.L.

94-142 and their attendant regulations have been

observed, and whether any procedural violations were

material or harmful.

The public school and the parent, when the parent waives

the right to appeal to the State Advisory Commission, or

following the decision of the SAC, may file a petition for

review in the Superior Court of competent jurisdiction or in

the District Court of the United States. Appeals to Superior

Court must be filed within 30 days after receipt of the Final

Decision of the Bureau of Special Education Appeals or the

State Advisory Commission, the Decision is final and then

must be implemented immediately unless the case is

appealed to court. While a court appeal is pending, the

public school is responsible for maintaining the child in the

program last agreed upon by the school and the parents

unless the party seeking a change of that placement attains

a preliminary injunction in court ordering the change.

Regardless of which party pays for a child's private school

placement while a court appeal is pending, ultimate fiscal

responsibility may rest with the party that loses in court

(Burlington S.C. v. DOE, 105 S.Ct. 1996 (1985)).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide

an electronic verbatim record of the hearing to any party

upon request. M.C.L. c. 30A §11(6) and 14(4) set forth the

requirements for making available to a party or a court an

Official record of the proceedings.

30A §11(6) Agencies shall make available an official

record, which shall include testimony and exhibits,

and which may be in narrative form, but the agency

need not arrange to transcribe shorthand notes or

sound recordings unless requested by a party. If so

requested, the agency may, unless otherwise

provided by any law, require the party to pay the

reasonable costs of the transcript before the agency

makes the transcript available to the party.

11a

30A §14(4) Within forty days after service of a copy

of the petition for review upon the agency, or within

such further time as the court may allow, the agency

shall file in the court the original or a certified copy of

the record of the proceedings under review. The

record shall consist of (a) the entire proceedings, or

(b) such portions thereof as the agency and the

parties may stipulate, or (c) a statement of the case

agreed to by the agency and the parties. The

expense of preparing the record may be assessed

as part of the costs in the case, and the court may,

regardless of the outcome of the case, assess any

one unreasonably refusing to stipulate to limit the

record, for the additional expenses of preparation

caused by such refusal. The court may require or

permit subsequent corrections or additions to the

record when deemed desirable.

Thus, if either party requests of the Bureau of Special

Education Appeals a certified written transcription of the

entire sound recordings, or a portion thereof, that party must

arrange for the transcription of the sound recordings at their

own expense. Transcripts prepared by the party must be

submitted to the Bureau of Special Education Appeals for

certification within 35 days of service of a copy of a petition

for review upon the agency. Any party unduly burdened by

the cost of preparation of a written transcript of the sound

recordings may petition the Bureau of Special Education

Appeals for relief.

COMPLIANCE:

lf either party believes that this decision is not being

complied with, he/she should request in writing a

compliance hearing. Said request should be as specific as

possible and should be addressed to the Director of the

Bureau of Special Education Appeals.

12a

CONFIDENTIALITY:

In order to preserve the confidentiality of the child

involved in these proceedings when an appeal! is taken to

Superior Court, or Federal District Court, the Bureau of

Special Education Appeals strongly urges the appealing

party to file the complaint without mentioning the true name

of the parents or the child (i.e., use only child's first name or

John or Jane Doe) and to move that all exhibits including

the transcript of the hearing before the Bureau of Special

Education Appeals be impounded by the court. If the

appealing party (when it is the School Committee) does not

seek to impound documents, the Department of Education

through the Attorney General's Office shall move to

impound the documents.

Carol E. Kervick

HEARING OFFICER

13a

BUREAU OF SPECIAL EDUCATION APPEALS

MATTHEW M.

APPELLANT

BSEA # 87-0073

CONCORD PUBLIC SCHOOLS

APPELLEE

June 29, 1987

BEFORE

CAROL E. KERVICK, HEARING OFFICER

LAWRENCE KOTIN, ATTORNEY FOR APPELLANT

RICHARD SULLIVAN, ATTORNEY FOR APPELLEE

14a

IN RE: MATTHEW M. BSEA # 87-0073

DECISION

This decision is written pursuant to M.G.L. Chs. 30A,

71B, PL 94-142, and the rules and regulations promulgated

thereunder.

A hearing was conducted on February 9, 10, March 12,

13, 19, and 23, 1987 in the offices of the Massachusetts

Department of Education, Quincy, MA before Carol E.

Kervick, hearing officer. The following persons were in

attendance for at least one day of the hearing.

Mr. Roland M.

Mrs. Miriam M.

Dianne Bossie

Marcel Kinsbourne

Miriam Freedman

Denise Sarault

Bruce Cushna, Ph.D.

Lawrence Kotin

Susan Carlson

Earl Corey

Denise Greene

Steve Kaplan

Anne F. Penn

Karl Pulkkinen

Kirk Swanson

Deborah Blanchard

Marie Martino

Richard Sullivan

Doug Salvesen

Parent

Court Stenographer

Pediatric Neurologist

BSEA Observer

Stenographer

Psychologist

Attorney for Parent

Director, Student

Support Services,

Concord Public Schools

Teacher, Concord

Public Schools

Concord Special

Education Teacher

Assit.Ditector Student

Services, Concord

Stenographer

Landmark School

Attorney for Concord

Observer,

15a

Boston University

Margaret Chow-Menzer Department of

Social Services

Nancy Swiniarski Court Reporter

Carol E. Kervick Hearing Officer, BSEA

The issues to be decided are |) whether or not Concord

Public Schools has proposed an IEP for Matthew M that

provides for his educational development to the maximum

extent feasible in the least restrictive environment; 2)

whether the residential placement proposed by the parents

at the Landmark School provides for Matthew's

development to the maximum extent feasible in the least

restrictive environment.

PROFILE

Matthew is a twelve year old boy with an attention deficit

disorder and a variety of learning disabilities that affect his

ability to acquire language skills in the area of reading,

spelling, writing, and math. he exhibits deficits in visual

motor, visual tracking and fine and gross motor coordination

skills. Matthew has exhibited behavior problems of an

obsessive nature including talking to himself, ripping his

clothes, flapping his hands and speaking in a loud voice.

Since he began school he has had difficulty relating to and

being accepted by his peers.

ANALYSIS AND CONCLUSION

It is undisputed by the parties and confirmed by the

evidence that Matthew is a child with special needs and

thus is entitled to the rights and services required by federal

and state special education laws.

| find that Concord's plan is appropriate with the addition

of an offer of socialization activities after school on a regular

basis to allow Matthew to achieve success and to assist him

to develop socialization skills in an integrated setting with

normal and handicapped peers. While Concord made an

effort to include a socialization component in its 1986-1987

IEP, | find that this alone was not enough to address peer

16a

relationship issues which clearly emerge as Matthew's

predominant need at this time. | do not minimize the

importance of Matthew's specific learning disabilities which

affect his ability to acquire language skills in the areas of

reading, spelling, writing and math. Similarly, the attention

deficit disorder and deficits in fine and gross motor skills

add to Matthew's complex profile. However, it is my finding

that the Concord IEP's for 1984-1985 and 1985-1986

clearly identified those needs, included appropriate goals

and objectives, and provided services that resulted in

progress described by Dr. Cushna as most astonishing.

(Exh P-73 at 2) This progress was achieved in a program

that had mainstreamed Matthew in social studies and

science for those two years, a mainstreaming component

that did not simply immerse Matthew into a regular

education program without support but allowed for

integration of a group of special needs students with both

regular and special needs teachers to assist them. The

1986-1987 IEP does not differ substantially from the

previous 2 IEP's except that it is in a middle school with

different service providers. In 1984-1985 and 1985-1986

Matthew was mainstreamed for academics for one period

four days a week. In 1986-1987 he would have been

mainstreamed for 6 periods a week for academics (science

and social studies). The other periods of mainstreaming

were for specials. Since mainstreaming was so successful

for Matthew for the previous two years | do not find an

additional 2 periods a week, for the same academics as he

participated in before, to be a defect in the plan. The law

requires that children be transitioned back into the

mainstream gradually when they demonstrate readiness

and it is clear to me that Concord's professional judgement

based on experience with Matthew was a sound one. It also

provided Matthew with the necessary content-appropriate

stimulation that he clearly needed and thrived on.

For all three IEP’s the student teacher ratio was

appropriate and was consistent with the recommendations

of experts including Dr. Cushna and Dr. Kinsbourne. As to

the transitions that would be required of Matthew for

19861987 | find them to be less frequent and to involve

fewer professional service providers than at Landmark.

17a

Other services found to be necessary for Matthew by

evaluators and Concord are lacking in the Landmark

program. While Matthew clearly benefits from occupational

therapy to enhance the development of motor skills, none is

provided at Landmark. While Concord addresses the

socialization issues, albeit not sufficiently in my judgment,

Landmark seems to take the position that with mere

exposure to other children socialization will occur

spontaneously. When observed by Concord staff at

Landmark Matthew continued to isolate himself and

Landmark staff made no effort to draw him in. | agree with

parents’ witness Dr. Cushna that Matthew needs some form

of group therany to deal with socialization and to help him

to be “held together.” Yet none of this is offered to Matt at

Landmark, a school that primarily deals with educational

deficits related to learning disabilities. | do not see

Landmark as providing a therapeutic milieu for a child

whose maior presenting problem at this time is socialization

skills.

Turning next to the issue of personnel, while Concord

staff is appropriately certified and has advanced degrees,

key staff at Landmark is uncertified. Denise Greene may not

have years of experience but | was impressed by her skills

and sensitivity (Several of the Landmark staff also have little

experience and less training). While the parents in their

closing argument take great pains to compare Mr. Coreys

class to Denise Greene's, they do not measure the

Landmark program by the same criteria. In other words, if a

small self contained class with the same teacher and the

same peers, by specific recommendation and inference,

was appropriate for Matthew, that type of program is clearly

not available at Landmark. In fact more service providers

are involved with Matthew at Landmark than in either the

Corey or the Greene program.

Based on the evidence, | find that Concord's IEP also

has a superior approach/methodology where Landmark's

focus on decoding skills could result in a regressive

situation for Matthew.

| therefore find that the Concord 502.4 placement is

superior to the Landmark 502.5 program in credentials and -

experience of staff, methodology, extent and type of

18a

services, and opportunity for mainstreaming, that would

allow for peer interaction with students in Ms. Greene's

class. Greene's students are more like Matthew in terms of

needs and levels of achievement than the students at

Landmark. Concord also provides for interactions with

normal peers through the mainstreaming component. At

Landmark Matthew is the only student who presents with

behavioral needs requiring a social tutorial.

Turning next to the issue of residential placement it is

my opinion that any reliance on the David D. case as setting

forth standards to be applied in all cases where residential

placement is at issue is to read the case too broadly. David

D. presented as a mentally retarded person whose

educational issues were issues dealt with control of

behavior needed to generalize in order to enable him to

function in society and behave appropriately in work and

social situations. David D.'s behaviors were of a sexual and

aggressive nature and needed to be extinguished or

controlled to allow him to participate in a group home and

sheltered workshop. The expertise required to accomplish

those goals could not be considered “ordinary parenting

skills.”

Contrast the needs of Matthew M. While his loud

speech, occasional talking to himself, lack of interest in

dressing, and poor eating habits may be annoying to his

parents and others, they are only minimally interfering with

his day to day life and apparently not at all with his ability to

benefit from education. Matthew, unlike David D. is

functioning well in society. Further Matthew has intellectual

skills of at least an average level. And from the testimony of

Kirk Swanson who is not a behavioral management expert

we learned that the only service Matthew received in the

residential component consisted of common sense

techniques to ensure task completion. According to

Swanson what Matthew needed was attention to

organizational issues and no special qualifications were

required to provide Matthew with some structure.

Aithough | disagree with Dr. Kinsbourne's conclusion on

the need for residential placement, | do agree that Matthew

needs constant intervention. In his report (P-75, at 3) he

recommends:

19a

"The need of a student like this can be addressed by

individualized tutoring but cannot be met solely by

the provision of specific educational experiences.

Social ineptitude puts him at risk of unpleasant life

experiences that could drive him into major

depression. He has a clear need for a generally

responsive and supportive milieu. Matthew's social

handicaps will not correct themselves nor would

they readily be corrected although the attempt

should continue to be made. It is necessary for staff

to be constantly at hand to intervene when Matthew

gets himself into difficult situations.”

| am troubled by the fact that Landmark staff were not

aygressively working to integrate Matthew in either the

afternoon or residential components. The fact that Matthew

now has a friend acceptable to his parents is certainly a

positive gain for Matthew. | fail to find, however, that

anything particular to the Landmark program contributed to

this development. Perhaps, as with Aron, it was simply

spending a lot of time in close proximity.

| therefore find that Matthew's needs are not so severe

as to dictate a residential placement and even if they were

or become so in the future, that Landmark is not an

appropriate service provider.

Parents raised issues of procedural violations regarding

the development, writing and completion of the final

lIEP.The facts are not clear and the issues are confusing

However | feel | need not reach those procedural issues in

order to render a decision equitable to the parents and

Concord. It was clear to the Concord staff that Mrs. M. in

particular relied heavily on Mr. Coreys' advice during

Matthew's 2 years in his class. That she would rely on any

of his recommendations, including his support for Landmark

in July 1986, should come as no surprise to anyone. Even

though Mr. Corey's recommendations for Landmark cannot

be considered an official act or commitment, the parents

relied at least on his perception of the Landmark program

as an appropriate placement for Matthew. Corey, after

visiting the program, changed his mind as to its

20a

appropriateness and | concur with his judgment.

lt was also clear to the Concord staff that Mr. and Mrs. M.

were concerned that the 1986-1987 IEP be virtually

identical to the 1985-1986 Corey program. Corey, Kaplan

and Greene assured the parents that Greene's program

was virtually identical. | have found that, aithough not

identical, it was a superior program to Landmark. Because

of the parents’ confusion and relicance on statements of

Concord staff as well as Drs. Kinsbourne and Cushna, they

placed Matthew at Landmark. That seven months later

Concord has convinced this hearing officer that the 502.5 or

502.6 Landmark programs are inappropriate and the 502.4

Concord program is appropriate is irrelevant to the issue of

the right to reimbursement for a past unilateral action. The

parents reasonably relied on Mr. Corey's summer 1986

opinion when they placed Matthew in September, 1986.

Concord's IEP was not complete until January, 1987 when

the final IEP was received by the parents. It should also be

noted that the aide was not hired until January. These

conditions were confusing and prevented the parents from

making a decision based on the totality of Concord's

proposed plan.

| find that due to the confusion over the Concord 1986-1987

plan, coupled with parents’ reliance on Corey's opinion

(even if it was offered oniy to get Matthew out of the home),

Mr. and Mrs. M. are entitled to be reimbursed for the

Landmark day component including the after school

activities, from September through January 1987. This

placement however shall not be considered the last agreed

upon placement for the purposes of placement pending

appeal as | have found the Concord program, with an

additional after school peer interaction program, to be a

superior one to Landmark and the Landmark program to be

inappropriate. Concord shall reconvene the TEAM to write

an IEP including after school services to provide Matthew

with meaningful opportunities for peer relationships. | will

leave it to the TEAM to determine the nature and extent of

such services.

RECONSIDERATION OF DECISION:

21a

Reconsideration of the case may be granted upon the

showing of any serious error 2f law; misconstruction of the

rules, regulations and policies of the Department of

Education; or upon the discovery of material evidence

existing at the time of the hearing, but not introduced, which,

if proven, would be likely to alter the conclusion of the

decision. Written application for reconsideration of such

cases may be made by either party to the hearing officer

who heard the case and in consultation with the Director of

the Bureau of Special Education Appeals, such application

may be granted or denied within the discretion of the

Bureau. Application should be made within a reasonable

time after the decision.

EFFECT OF DECISION AND RIGHTS OF APPEAL:

Both parties have rights of appeal under P.L. 94-142 (20

U.S.C. 1401), Chapter 71B and 30A of the Massachusetts

General Laws. The parenis may choose to appeal the

Decision of the Bureau to the State Advisory Commission

(SAC) by indicating such desire on the Choice of Options

form which accompanies this Decision, and submitting it

along with a written statement to the SAC of their objections

to the Bureau decision, including arguments in support of

their objections, and the evidence in the record which

supports their arguments, within the timelines specified.

Within five days of receipt of the parent's statement,

copies will be provided by the SAC to the other parties in

the case, who shall then have 10 days in which to resporid

to the parents’ statement in writing to the SAC. The SAC

shall consider the appeal at its next monthiy meeting

provided that it receives the appeal (including all party

statements) at least 15 days before such meeting. The

parent appeal to the State Advisory Commission is optional.

The State Advisory Commission has limited review

authority in that it will not hear new evidence in any form. It

will review the Decision of the BSEA to determine if it is

reasonable based on the evidence in the record, and is

consistent with established policy and law. The SAC must

determine whether the parties had, generally, notice of the

proceedings and an opportunity to be heard, and whether

22a

the procedural guarantees found in M.G.L. c. 71B (Chapter

766), c. 30A (State Administrative Procedures Act) and P.L.

94-142 and their attendant regulations have been

observed, and whether any procedural violations were

material or harmful.

The public school and the parent, when the parent waives

the right to appeal to the State Advisory Commission, or

following the decision of the SAC, may file a petition for

review in the Superior Court of competent jurisdiction or in

the District Court of the United States. Appeals to Superior

Court must be filed within 30 days after receipt of the Final

Decision of the Bureau of Special Education Appeals or the

State Advisory Commission, the Decision is final and then

must be implemented immediately unless the case is

appealed to court. While a court appeal is pending, the

public school is responsible for maintaining the child in the

program last agreed upon by the school and the parents

unless the party seeking a change of that placement attains

a preliminary injunction in court ordering the change.

Regardless of which party pays for a child's private school

placement while a court appeal is pending, ultimate fiscal

responsibility may rest with the party that loses in court

(Burlington S.C. v, DOE, 105 S.Ct. 1996 (1985)).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide

an electronic verbatim record of the hearing to any party

upon request. M.C.L. c. 30A §11(6) and 14(4) set forth the

requirements for making available to a party or a court an

Official record of the proceedings.

30A §11(6) Agencies shall make available an official

record, which shall include testimony and exhibits,

and which may be in narrative form, but the agency

need not arrange to transcribe shorthand notes or

sound recordings unless requested by a party. If so

requested, the agency may, unless otherwise

provided by any law, require the party to pay the

reasonable costs of the transcript before the agency

makes the transcript available to the party.

23a

30A §14(4) Within forty days after service of a copy

of the petition for review upon the agency, or within

such further time as the court may allow, the agency

shail file in the court the original or a certified copy of

the record of the proceedings under review. The

record shall consist of (a) the entire proceedings, or

(b) such portions thereof as the agency and the

parties may stipulate, or (c) a statement of the case

agreed to by the agency and the parties. The

expense of preparing the record may be assessed

as part of the costs in the case, and the court may,

regardless of the outcome of the case, assess any

one unreasonably refusing to stipulate to limit the

record, for the additional expenses of preparation

caused by such refusal. The court may require or

permit subsequent corrections or additions to the

record when deemed desirable.

Thus, if either party requests of the Bureau of Special

Education Appeals a certified written transcription of the

entire sound recordings, or a portion thereof, that party must

arrange for the transcription of the sound recordings at their

own expense. Transcripts prepared by the party must be

submitted to the Bureau of Special Education Appeals for

certification within 35 days of service of a copy of a petition

for review upon the agency. Any party unduly burdened by

the cost of preparation of a written transcript of the sound

recordings may petition the Bureau of Special Education

Appeals for relief.

COMPLIANCE:

lf either party believes that this decision is not being

complied with, he/she should request in writing a

compliance hearing. Said request should be as specific as

possible and should be addressed to the Director of the

Bureau of Special Education Appeals.

24a

CONFIDENTIALITY:

In order to preserve the confidentiality of the child

involved in these proceedings when an appeal is taken to

Superior Court, or Federal District Court, the Bureau of

Special Education Appeals strongly urges the appealing

party to file the complaint without mentioning the true name

of the parents or the child (i.e., use only child's first name or

John or Jane Doe) and to move that all exhibits including

the transcript of the hearing before the Bureau of Special

Education Appeals be impounded by the court. If the

appealing party (when it is the School Committee) does not

seek to impound documents, the Department of Education

through the Attorney General's Office shall move to

impound the documents.

Carol E. Kervick

HEARING OFFICER

25a

JULY27, 1987

COMMONWEALTH OF MASACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: MATTHEW M.

V. BSEA # 87-0073

CONCORD PUBLIC SCHOOLS

DECISION ON MOTIONS OF PARENTS AND CONCORD

FOR RECONSIDERATION AND CLARIFICATION

| conclude that at the time of the parents decision to

place Matthew at Landmark the Concord 502.4 IEP was not

in compliance procedurally because it was not presented to

the parents in writing with specificity as to the services prior

to the beginning of the 1986-1987 school year. In fact there

was no complete procedurally appropriate IEP until some

time in December or January. Further the IEP was deficient

substantively in that it did not provide sufficient socialization

experiences after school for Matthew. And finally, the aide

required to guarantee sufficient small group, individual

instruction and monitoring was not available until January.

One month before the time of the parents decision Mr.

Corey, Matthew's teacher for two years in Concord,

indicated that the program at Landmark was an appropriate

one. Landmark also provided socialization, experiences

and an extended school day. It should also be noted that no

staff at Concord indicated to the parents that the academic

components at the Landmark program were not

appropriate.

My order to Concord to reimburse the parents for the

day component - i.e. the 502.5 placement including after

school services is based on the procedural and substantive

inadequacies of the Concord IEP, that existed until January

1987, and the parents reasonable reliance on Mr. Corey's

approval. Given the inadequacies of the Concord program

26a

the parents chose to place Matthew in Landmark following

a successful summer placement there. The Landmark

program appeared to them to be an appropriate alternative

program that did include considerably more opportunities

for socialization. At the time of their decision, given all of the

facts, they acted reasonably and therefore they are entitled

to reimbursement until that point in time - January - when

Concord presented and was capable of implementing an

IEP that was more appropriate in most respects than that of

Landmark.

As to the placement pending appeal issue, however,

once Concord presented an IEP that was procedurally in

compliance and substantively superior, the Landmark

program must be view with greater scrutiny. Particularly in

this case where the defects found in Concord original

program were minor and where those later found in

Landmark's program were substantial, it would be

irresponsible to continue to hold Concord responsible for

maintaining a child in much more restrictive program at a

significant distance from his home and community. Matthew

had achieved significant gains from a more mainstreamed

placement in the past and would likely continue to do so. In

this case to my mind the requirement of least restrictive

environment outweighs the “stay put" provisions,

particularly where the less restrictive program is more

appropriate. Therefore the Landmark program is not the

placenie nt pending appeal.

As to the amount of reimbursement the parents or

Landmark may apply to the Division of Special Education

for a determination of the costs, if any, for the 502.5

extended day placement.

7/24/87 Carol E. Kervick, Hearing Officer

Bureau of Special Education Appeals

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AUG16 1988

AUG 24 1988

BUREAU OF SPECIAL EDUCATION APPEALS

MATTHEW M.

APPELLANT

BSEA #88-0086

CONCORD PUBLIC SCHOOLS

APPEWLEE

BEFORE

PHYLLIS RYACK, HEARING OFFICER

DAVID BERMAN, ATTORNEY FOR APPELLANT

RICHARD SULLIVAN, ATTORNEY FOR APPELLEE

MASSACHUSETTS DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: MATTHEW M. BSEA CASE #88-0086

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DECISION

This decision is rendered pursuant to M.G.L. Chapters

15, 30A, and 71B; 20 U.S.C. 1401-1461; and the

regulations promulgated thereunder.

A hearing was held by the Bureau of Special

Education Appeals (BSEA) on 2/24/88, and 3/8/88 &

3/10/88 at the Northeast Regional Education Center, North

Reading, and on 3/28/88 , 4/6/88, 4/29/88 and 5/25/88 “at

the Concord Public Schools (Concord) on appeals by Mr.

and Mrs R.M. of the 1987-1988 Individual Educational Plan

(IEP) proposed by Concord for their minor son, Matthew.

Persons present at all, or part of, the hearing were:

Mr. and Mrs. R.M. -Parents

David Berman -Counsel for Child/Parents

Richard Sullivan -Attorney for the Concord School

Committee

Susan Carlson -Director of Student Support

Services,- Concord

Denise Greene -Special Education Teacher,

Concord Middle School

Dr. Barbara Miller | -School Psychologist, Concord

Lisa Kendrick -Teacher, Landmark School

Deborah Blanchard -Student's Case Manager,

Landmark

Wendy Atwood -Teacher, Landmark

Karl Pulkkinen -Public School Liaison,

Landmark

Archibald Campbell -Director of Guidance and

Campus Affairs, Landmark

Dr. Michael Marcus’ -Psychiatrist

Kathleen Bradley -Court Stenographer

Elaine Duguay -Court Stenographer

Shelly Killian -Court Stenographer

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Laurie Lampron -Court Stenographer

Kathleen Emme! -Court Stenographer

Linda Allan -Court Stenographer

Isabelle Kiebanow -Court Stenographer

Phyllis Ryack -BSEA, Hearing Officer

*Closing arguments were received from the Parents and

Concord on 7/21/88.

PROFILE

Matt is a 13 year old student who presents a constellation of

special needs that compromise his ability to learn, and can

be categorized in three distinct areas: 1. Visual perceptual

motor problems that affect fine and gross motor skills,

spatial motor planning, unawareness of extraneous motor

movement, and an expressive language disorder that is’

manifested in problems with intonation, sequencing and

organizing thoughts, and modulating voice volume; 2.

Attention deficit disorder evidenced by short attention span,

inconsistency with auditory retention, and

perseverating/fixating on isolated ideas or issues; and 3.

Social/emotional factors that impact on rudimentary social

skills, poor self-image and diminished confidence, high

anxiety in dealing with academic demands, and rigidity in

thinking. (Testimony of Carlson, Mr. M., Exhs. S-11-88, S-

15-88)

Matt attended a 502.4 program within the Concord Public

Schoo's from 9/84 to 6/86. His parents placed him in a

502.6 residential setting at the Landmark School in 9/86

where he remained to the date of the instant hearing.

PROCEDURAL DISCUSSION

|. BSEA issued a decision on 6/11/87 dealing with the

1986-1987 IEP (Exh. S-14-88). This decision is currently

under appeal in Federal District Court, and will likely be

consolidated with this instant decision. The exhibits entered

into the record during the prior hearing were incorporated

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by reference into the instant record-Exhs. S-1-87 to S-16-87

and P-1-87 to P-83-87.

ll. It is undisputed that the following procedural events

occurred: (Exhs. S-3, 4,11,12,15-88)

1. The TEAM convened on 5/26/87 to develop an

IEP for the 1987-1988 school year based on performance

levels reported by the Landmark School (Landmark) for the

period between 1/87 and 5/87.

2. Matt's parents rejected Concord’s proposed IEP

on 7/1 0/87 .

3. The TEAM reconvened on 7/29/87 to develop an

amendment to the IEP incorporating an after-school

component.

4.Mr.and Mrs . M. rejected the amended IEP on

8/28/87 .

5. Since Concord was obligated to conduct a 3-

year reevaluation in 6/87, pursuant to Regulation 334, the

parties agreed to delay these assessments pending receipt

of reports from Dr. Bruce Cushna and Dr. Marshall

Kinsbourne (current treating physicians), and 1986-1987

year-end assessments from Landmark.

6. The apparent shared assumption by the parties

was that all assessments and evaluations referenced in #5.

supra would be made available during summer 1987, and

that the TEAM would reconvene in September or October

1987 to consider all updated information.

7. Concord received the Landmark assessments in

11/87, and Dr. Cushna’'s report in 12/87.

8. On 1/29/88 and 2/3/88, Concord mailed to the

parents a Parental Permission form that described the

assessments required for the 3-year reevaluation.

Apparently the parents did not receive the first mailing, and

a second mailing was necessary.

9. Mr. M. gave his consent to allow Concord to conduct

the 3-year reevaluation on 2/24/88 - the first day of hearing.

The reevaluation was not conducted.

1 SSUES

1. Does Concord’s proposed 1987-1988 IEP address

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Matthew's special education needs so as to assure his

maximum possible educational development in the least

restrictive educational environment consistent with state

and federal statutory requirements?

2. If a negative finding is attached to the above, is the

Landmark School's 502.6 educational program required to

achieve maximum feasible educational benefits in the least

restrictive educational setting?

POSITIONS OF THE PARTIES

Parents - They contended that maintaining the 502.6

residential placement at Landmark was critical to enable

Matt to achieve maximum feasible educational benefits for

the following reasons: 1. Demonstrated gains in specific

academic skill areas, 2. Improved socialization skills in

school and at home, 3. Increased confidence and self-

esteem, and 4. These gains were considered to be tenuous

and fragile, and likely to be compromised if he were to

return to Concord.

Concord - The 502.4 plan included the following

components: Daily small group instruction in reading,

English, math, in-class support, and academic tutorials;

weekly small group counseling by the school psychologist

to focus on socialization skills; weekly individual sessions in

occupational therapy and speech/language therapy; and an

after-school activity program to promote positive peer

relations and effective social skills. Concord argued that this

plan combined intense remediation with mainstreaming

opportunities, and was far superior to Matt's current

placement at Landmark.

REVIEW OF EVIDENCE

1. Testimony by Archibald Campbell, Director of

Guidance/Campus Affairs, and Exh. P-4, indicated that of

the five teachers at Landmark delivering direct academic

services to Matt during 1987-88, only Kathleen Daily,

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language arts tutor, holds moderate special needs

certification. The remaining four teachers hold neither

regular education nor moderate special needs certifications

within the Commonwealth. Deborah Blanchard, his case

manager, does hold moderate special needs certification.

2. On 1/20/87, The Department of Education (DOE) granted

to Landmark a second provisional approval for six months,

effective 1/1/87, to allow the Headmaster to complete the

enrollment of staff into programs leading to certification.

This provisional approval was granted in accordance with

603 CMR Section 18.00 (1)

(a), 2. Regulations for the Approval of Private Special

Education Schools to Serve Publicly Funded Students.

(Exh. S-21-88)

Mr. Campbell requested on 7/24/87 that DOE extended

the provisional approval pending a full program audit by

DOE scheduled for 10/87. To date, DOE has taken no

further action in this matter.

3. Mr. Campbell cited the following statistics dealing with

the North Campus where Matt is presently enrolled: 10 of

the 47 teachers did not return for the 1987-1988 school

year: 16 or 17 of the current 47 teachers hold moderate

special needs certification; 10-15 of the remaining 30

teachers are now enrolled in either programs at Salem

State College leading to regular education certification, or

at Lesley College leading to moderate special needs

certification having completed regular education

prerequisites.

Mr. Campbell testified that despite his frequent

prompting urging teachers to enroll in certification granting

programs, many remain unenrolled, and without any

punitive action taken by Landmark.

4. Wendy Atwood (B.S. in Art/Education/Psychology, and

certified in art in New York for K-12) is Matt's teacher in

Pragmatics-Oral Expression. She holds no certifications in

either regular education or moderate special needs within

the Commonwealth. Ms. Atwood testified that: 1. She could

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not identify nor discuss Matt's specific learning disabilities

as they affect his ability to learn and achieve academic

progress; 2. The program provided at the North Campus is

not intensiveiy language-based; 3. To the date of her

testimony on 2/24/88, all of Matt's teachers had not met

during the current school year to discuss his progress

specifically, but that minimal informal contact among

teachers usually takes place; 4. Although she is responsible

for the daily lesson plan, she has not tailored the

instructional materials nor approach to address Matt's

individual needs; 5. To encourage Matt to self-monitor his

normally loud, monotone voice in class, Ms. Atwood

provides gestures and cues, and uses a tape recorder; 6. At

the start of the school year, Matt frequently bit his arm, and

shook papers noisily causing distraction to the other 7

students. Ms. Atwood stated that the arm biting ceased

during the fail, most likely the result of peer criticism.

Ms. Atwood's progress report, dated 11/6/87 (Exh. 5-7-

88, page 44), indicated that Matt participated in class

activities willingly; he required “encouragement to refrain

from inappropriate behavior (engaging in conversation

during presentation, biting his hands, tapping his pencil)",

and homework was consistently completed on time.

5. Lisa Kendrick (B.A. in Religion and minor in English)

holds no teaching certifications, and has been a faculty

member at Landmark since 9/85. Ms. Kendrick is Matt's

language arts teacher, and also a team leader for the

residential program. She testified that she is not enrolled in

any certification granting program, and was notified once

during the current school year by the Landmark

administration concerning enrollment at Salem State

College. Ms. Kendrick initiated the following contacts with

other teachers to assist her in providing services to Matt: 1.

She discussed Matt's specific needs twice with Susan

Richardson, Matt's language arts teacher during 1986-

1987; and 2. Although she was uncertain whether Matt is

currently receiving speech/language therapy, Ms. Kendrick

consulted with the speech/language therapist to assist Matt

in modulating his voice volume. Further, she testified that

she met with Adrian Jellinghaus, her supervisor, for the first

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time on 3/1/88 to discuss Matt's specific learning deficits.

In response to a query to determine Ms. Kendrick's

understanding of the term "“language-based", she

responded that - she could not “give a good definition... |

wouldn't know a (good approach for language-based

instruction for Matthew M.)". Ms. Kendrick further

acknowledged that she was unaware of the language

methodology used by Matt's other teachers.

As residence team leader since 6/87 for Matt's dormitory

every Wednesday evening from 3 P.M. to about 10:30 P.M.

to midnight, and one weekend monthly, Ms. Kendrick stated

that she has never observed any inappropriate behavior by

Matt, nor has she ever implemented any specific behavior

management strategies for him. She cited the following

improvements in Matt's dormitory behavior during 1987-

1988: 1. Maintains eye contact; 2. More willing to reach

compromises with his roommate; 3. Shares common

interests with the other boys; and 4. Freely compliments

achievements of other boys.

Based on her day-to-day observation of Matt's progress,

Ms. Kendrick testified that Matt achieved the following gains

in language arts since the start of the school year;

Increased accuracy in noun and verb usage, employs more

adjectives in expressive writing, improved ability in outlining

reading material accurately, demonstrates more creativity

and enthusiasm in writing assignments, ability to proof-read

more accurately, written homework assignments have

become longer independently, and improved self-

confidence.

6. Karl Pulkkinen, Public School Liaison at Landmark

School, discussed Matt's progress in the North Campus

program (based essentially on conversations with

supervisors in subject areas), and his reactions to the IEP

proposed by Concord for 1987-1988. Following is a

comparison of grade equivalency scores achieved by Matt

on standardized protocols on 6/87 - end of 1986-87 school

year, and 9/87 and 10/87 - start of 1987-88 school year:

(Exh. P-6-88) (Note: those grades that are separated by a

slash indicate that the first grade was earned on a timed

testing period, and the second grade denotes an untimed

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testing period.)

6/87 9/87 10/87

6thor Zthar thor

Gray Oral Reading 5.9 4.4/4.5

Slosson Oral Reading 7.4 7.2

Stanford Spelling 5.3 5.1

Stanford Achievement Tests

Level |-1 FormF Level 1-2, Form &

Reading Comprehension 2.8/7.0 4.3/7.5

Word Skills 2.5/2.8 4.9/6.8

Mathematics 1.8/4.7 4.2 -Level 1-1

Mr. Pulkinnen reviewed examples of Matt's

unacceptable behavior at bedtime that resulted in

suspension by the Disciplinary Committee for four days

Starting 6/1/87 (Exhs. P-7, P-8-88). When he returned to

school, he was placed on social probation that involved

restrictions on dress, free time, and off-campus activities.

Mr. Pulkinnen's main objection to the proposed Concord

IEP was his perception that the goals and objectives were

overly ambitious for Matt's attainment. He testified that the

objectives were “too far-reaching and unrealistic to expect.

7. Deborah Blanchard (M. Ed., Lesley College and holding

certifications in moderate special needs - N to Q,

supervisor/director - K to 8, and elementary - K-8) serves on

the North Campus at Landmark as Educational

Coordinator, Supervisor, and Case Manager for 9 students,

including Matt. Ms. Blanchard described the following

components of in-service training made available to

Landmark teachers: 1. All new teachers are required to take

- @ one-week intensive summer program that deals with a

comprehensive overview of academic and administrative

responsibilities; 2. Two-hour sessions are conducted four

times annually that focus on specific special education

topics attention deficit disorders, appropriate student

profiles for admission, diagnosis of special needs, etc; and

3. Daily half-hour “milk breaks” that deal with specific

36a

educational issues, and occasionally involve case

discussions of individual students.

Since Matt is considered by Landmark to be privately

funded by his parents (pendiny resolution of the appeals in

Federal District Court), Ms. Blanchard testified that

Landmark has not developed an IEP for 1987-1988.

Further, she stated that to ensure consistency in a

programmatic approach for each student's individual

special needs, teachers rely on a generalized Landmark

philosophy. Team meetings attended by ail teachers

attached to a student's program are generally not held

during the school year, except on an as-needed basis.

As the supervisor for Matt's daily individual language

tutorial, Ms. Blanchard listed the following areas where she

has discerned progress by Matt based on 7 observations

during 1987-88: written expression, paragraph

development, handwriting, increased fluency in reading,

dramatic improvement in voice modulation, and

considerable increase in eye contact. Although she

acknowledged that Matt had demonstrated both fine and

gross motor deficits, Ms. Blanchard testified that Landmark

did not arrange for an outside occupational therapy

evaluation since the school does not employ a registered

occupational therapist. Ms. Blaichard further stated that the

speech/language therapist who provided services during

1986-87 did not complete formal testing at the completion of

the school year. Rather, the speech/language therapist's

anecdotal account of Matt's deficit areas formed the basis

for Matt's placement in his current. oral

expression/pragmatics class.

The final sentence of the Disciplinary Committee Report,

dated 6/1/87 (Exh P-8-88), stated that "The Committee also

recommended... a reassessment of his social needs by the

Landmark psychological staff". Ms.Blanchard testified that

Matt tantrummed a few times in 9/87 and 10/87 when

reprimanded by the dorm counselor for continued

unacceptable bedtime behavior. However, Landmark did

not conduct any social or psychologicai assessments at the

conclusion of 1986-87, or any time during 1987-88.

Although, Ms. Blanchard stated that Matt was included on a

list of students to be screened by the adjustment counselor

———E—_ ee

37a

during fall 1987, this screening did not take place at any

time prior to Ms. Blanchard’s being advised by Mrs. M. at

the end of 10/87 that Matt was receiving private psychiatric

treatment.

As Matt's Case Manager, Ms. Blanchard testified that

Matt evidenced no problem transitioning from class to class,

teacher to teacher, or from one dorm counselor to another.

8. Susan Carlson, Director of Student Support Services for

the Concord Public Schools (M.S. Columbia School of

Education, completion of all doctoral course work at Boston

College, and holding certification in moderate special

needs and Administrator of Special Education, K-12)

focused her testimony on the procedural and substantive

aspects of the TEAM Meetings on 5/26/87 and 7/29/87,

and her perception of the parents’ concerns at these

meetings. Ms. Carlson had seen Matt occasionally when he

attended the substantially separate 502.4 class at the

Williard School during the 4th and 5th grades (9/84-6/86),

and reviewed all progress reports, assessments, and

independent evaluations pursuant to both the prior and

instant appeal hearings.

Ms. Carlson recollected that at the TEAM meeting on

5/26/87, Karl Pulkkinen, Public School Liaison at

Landmark, discussed the following aspects of a proposed

educational program for Matt: science and social studies

content subjects, learning disabilities, academic areas, and

emotional needs. Ms. Carlson testified that all participants

agreed that programming in Concord during 1987-88 for

science and social studies could be flexible - both contents

areas could be provided within the substantially separate

502.4 program, or science could be delivered in a regular

7th grade class (with an in-class tutor providing assistance

to Matt in note-taking and organization), augmented by a

daily session of small group academic support. Since Matt

has evidenced good comprehension in regular education

science when he attended the Williard School, Ms. Carlson

testified that this contents ares in a regular 7th grade class

would be a strength and a source of self-esteem for Matt.

Ms. Carlson stated that at the 5/26/87 TEAM Meeting: 1.

The parents did not indicate any dissatisfaction with

38a

Concord’s proposed 1987-88 IEP; 2. Ms. M. discussed

Matt's progress at Landmark; 3. Mrs. M. requested that Matt

return to Landmark for the 1987-88 school year, 4. The

parents did not refer to any past teasing of Matt when he

attended Concord schools, 5. and. The parents did not

request that Concord provide a counseling service .

Following receipt by Concord of BSEA decision of Case

#870073 (Exh. S-14-88), Ms. Carlson testified that the

TEAM reconvened on 7/29/87 to comply with the following

language contained in this decision: “Concord shall

reconvene the TEAM to write an IEP including after school

services to provide Matthew with meaningful opportunities

for peer relationships. | will leave it to the TEAM to

determine the nature and extent of such services”. At the

meeting, Ms. Carison distributed to all participants (parents,

Steven Kaplan - Assistant Director of Student Support

Services, and Karl Pulkkinen of Landmark) a proposed

consideration for after-school programs and possibilities for

implementation (Exh. 5-22). Ms. Carison stated that Denise

Greene, Matt's proposed teacher for the 502.4 program,

would also conduct the after-school services. The

participants reached consensus that the after-school

program should be scheduled 2 or 3 afternoons weekly,

rather than daily, in order to determine whether

socialization gains were carried into unstructured activities

with Matt's neighborhood peers. Ms. Carlson recalled that

the parents preferred an integrated mix of youngsters

(reguiar education and special needs), and lower

competition activities. Ms. Carlson testified that the “parents

didn't have specific concerns about the rejected IEP, they

just wanted to keep Matthew at Landmark”. Further, they did

not raise any concerns about Matt's experiencing any

teasing when he was in the Concord Schools. The parents

rejected the amended 1987-88 IEP on 8/28/87.

Ms. Carlson pointed out that: 1. The IEP did not include

occupational therapy (OT) goals and objectives since Matt

did not receive this service at Landmark, and there was no

recent evaluation. Concord intended to evaluate Matt in

9/87 to determine whether OT was a necessary service,

and, if needed, appropriate goals and objectives would

then be developed. 2. The weekly 1-1 speech/language

————EE———

39a

therapy would focus on expressive language to: (a.) provide

self-monitoring techniques to deal with voice volume, (b.)

Assist in monitoring extraneous gestures, and (c.) Promote

careful sequencing of thoughts in a logical manner.

9. Denise Greene (B.S. University of New Hampshire with

major in communications disorder, Master's in Special

Education from the University of Virginia, certified in

moderate special needs) was Matt's designated teacher in

the 502.4 class, and also for the after-school component.

She has been the principal teacher in the substantially

separate 502.4 class at the Peabody Middle School since

9/86. Ms. Greene termed the proposed 502.4 class as

language-based. A full-time tutor provides direct services

under Ms. Greene's supervision; the teachers meet each

Friday to review each student's--individual progress, share

updated information, and discuss the next week's lesson

plans. Ms. Greene stated that the 6 youngsters currently-in

the program demonstrate a range of learning disabilities

that are compatible with Matt's. Currently, 4 students are

mainstreamed in math, and 3 in English classes. Since the

gap in academic skill acquisition- between regular

education and special needs students usually widens in the

7th grade, Ms. Greene considered the achievement of

maximum educational development and promoting self-

esteem and confidence as critical concerns for the program.

Ms. Greene discussed the specifics of each special -

education service designated in the IEP:

Daily Alternative English - Currently 4 students, taught

by Ms. Greene, uses essentially the same texts and

materials as the regular 7th grade class, but modified to

assure contents acquisition and understanding. The class

focuses on the mechanics of written language on 3 days,

and on the remaining 2 days, the students are engaged in

creative writing on computers that are permanently housed

in the classroom.

Daily Alternative Math - Currently provided to one

youngster by Ms. Greene using 7th grade regular education

texts with varied supplemental materials, and largely

following the regular class curriculum.

Daily Reading - Small group instruction delivered by the

40a

tutor dealing with specific learning disabilities evidenced by

the students, and geared to providing intensive reading

remediation.

Daily Academic Tutorial - Tutor-directed small group or

individual instruction intended to reinforce instructional

materials in academic skill areas.

In-Class Support - If Matthew enrolled in mainstreamed

science and/or social studies, the tutor would accompany

him to every class to assist in note-taking, organization of

materials, study skills, and reinforcement of presented

instruction.

Socialization - Weekly session for the entire class

conducted by the school psychologist, and attended by Ms.

Greene, intended to promote social skills and appropriate

peer interaction.

Occupational Therapy - If an evaluation, intended to be

conducted in 9/87, indicated that Matthew would benefit

from OT services (provided by a registered therapist), the

service would be provided weekly on an individual basis.

Speech/Language Therapy - Individual weekly session

delivered by a certified therapist to deal with the following

specific areas attached to expressive language - intonation,

sequencing and organizing thoughts, and modulating voice

volume.

Ms. Greene testified that Matt could select from the

following academic and non-academic options: technical

art, music, foreign language, home economics, and

woodworking. She stressed that the students in the 502.4

Class participate in the full range of extra-curricular

activities. They are integrated with regular education

children in the normal flow of school activities.

In connection with the development of the 1987-88 IEP,

Ms.Greene testified that she wrote the following sections

(Exh. S-15-88): profile, special education services, and all

academic goals and objectives. Her input cased at the

conclusion of Performance Level #13 (page 108), and she

did not write the goals and objectives for speech/language

therapy and socialization. Although the Concord Public

Schools utilizes a computer bank containing an array of

available goals and objectives, Ms. Greene stated that she

used computer bank materials only when they represented

41a

Matt's specific special needs. When the computer goals

and objectives did not reflect Matt's individual needs,

Ms.Greene wrote them specifically directed to his deficit

areas.

10. Dr. Barbara Miller, school psychologist (Ph.D. in

Clinical Psychology with Specialization in Learning

Disabilities from McGill University, and holding certifications

in moderate special needs and as a school psychologist),

conducts the weekly counseling 50-minute counseling

group designated in the 1987-88 IEP.-Dr. Miller testified that

the goals and objectives of the counseling component are:

1. To address the issue of self-esteem (sense of security,

identity, purpose, confidence, and belonging), and to build

and enhance the feeling of self-esteem; and 2. To address

individual needs dealing with socialization skills. Each

session is structured in a discussion format that focuses on

a specific issue, and is augmented by role play to reinforce

targeted skill areas. Based on her assessment of the

students’ attitudes, reports from parents, and day-to-day

observations by teachers, Dr. Miller opined that the

youngsters were successfully incorporating many positive

aspects of the group experience into outside activities. Dr.

Miller also stressed that each student's individual learning

style is accommodated during group discussion to ensure

understanding, participation, and the ability to generalize

learned skills.

Dr. Miller's only direct interaction with Matt was limited to

the psychological evaluation that she administered when

Matt was in the 3rd grade. Her familiarity with Matt's

constellation of special needs was gained from her review

of available school records. In response to a query

regarding alleged teasing of Matt by regular education

children when he attended the Williard School, Dr. Miller

testified that “teasing of the 6 students in the counseling

group was not a problem at all this year. Five of the 6

students ride school buses, and there has been no incident

of teasing”. If teasing became a problem, Dr. Miller stated

that appropriately directed discussion would enable the

youngsters to understand the nature of the problem, and

assist them to implement strategies dealing with teasing.

ha aieareneeaeeattnateeeemaniniemnaenes

42a

She stressed that all students in the group are exceptionally

supportive of each other. Dr. Miller further underscored that

"to my knowledge, teasing has never been a problem

during the 4 or 5 years that the current program has been in

effect at the Peabody Middle School.

FINDINGS AND CONCLUSIONS

Matthew M. is a child with special needs falling within

the purview of 20 U.S.C. 1401 et seg and M.G.L. Ch. 71B.

As such he is entitled to a free appropriate public education

which assures his maximum possible educational

development in the least restrictive environment consistent

with that goal (David D. v. Dartmouth School Committee,

775 F2d 411 (1985)). Neither his status or entitlement is in

dispute. Likewise, there is substantial agreement between

the parties, as to the nature and degree of his special

education needs. Essentially, Matthew presents a language

disorder that impedes his academic progress. Further, he

exhibits deficits in visual motor, visual tracking, and fine and

gross motor skills. Although there is no dispute concerning

his poor socialization skills, the extent of his emotional

fragility remained a disputed issue. (Testimony of Carlson,

Mr. and Mrs. M., Marcus, and Exhs. S-11-88, S-15-88)

The controversy in the instant matter centers on the

following questions:

1. Whether the 1987-88 IEP proposed by the Concord

Public Schools on 6/12/87 designating a 502.4 prototype,

and later amended on 7/29/87 to provide an after-school

component, was reasonably calculated to promote

Matthew's maximum feasible educational benefits in the

least restrictive environment or 2. Whether the complexity of

his special education needs required a 502.6 residential

placement at the Landmark School during 1987-88 in order

to achieve his maximum educational development in the

least restrictive environment.

Based on a careful analysis of the record (Exhs. P-1-38

to P-12-88, S-1-88 to S-27-88, B-I to B-5-BSEA, and 26

hours of recorded testimony), closing arguments submitted

by counsel, and a review of applicable federal and state

law, and pertinent judicial guidance, | conclude that:

43a

1. The 1987-88 IEP proffered by the Concord Public

Schools was reasonably calculated to allow Matthew M. to

achieve maximum feasible educational benefits in the least

restrictive environment, and comports with the legal

requirements set forth under federal and state special

education laws.

2. Conversely, Matthew's placement during 1987-88 in

a 502.6 residential program at the Landmark School, which

is the most restrictive learning setting contemplated under

federal and state regulatory schema, was not required to

promote his maximum feasible educational development in

the least restrictive environment; Therefore, Concord is held

harmless for any financial responsibility thereto.

Prior to rendering my evidentiary reasons for these

conclusions, | shall deal with procedural issues raised by

Mr. Berman in his brief. He argued that the 1987-88 IEP

failed to comply with procedural requirements under Ch.

766. Specifically, he asserted that two intended service

providers did not attend the TEAM meeting-on 5/26/87, that

prioritization of learning problems was inaccurate, that

current performance levels were missing, and that the IEP

was largely computer-generated with minimal atiention paid

to Matthew's individual learning deficits.

First, Dr. Barbara Miller, school psychologist who

provided the weekly counseling group to enhance

socialization and peer interaction skills, testified that she

was on maternity leave at the time of the TEAM meeting.

Further, | find that the absence of, or a report from, Mr.

Lucas, the designated academic tutor, does not constitute a

serious flaw in the integrity of the proposed 1987-88 IEP. |

find that the record is absent any evidence that Mr. Lucas

had any prior contact with Matthew, and, therefore, had first-

hand knowledge of his learning disabilities.

Further, the parents requested that Concord refrain from

conducting any evaluations pending receipt of reports from

private evaluators (Drs. Kinsbourne and Cushna), and the

year-end testing from Landmark. Since this material was

not available at the TEAM meeting on 5/26/87 (and, in fact,

was not made available to Concord until late fall, 1987), |

find that Mr. Lucas wou'ld have been unable to discuss

specific remediation strategies at the TEAM meeting.

44a

Next, the parents’ refusal to allow Concord to conduct a

3-year reevaluation, and the inaccessibility of reports from

Drs. Kinsbourne and Cushna, as well as Landmark,

impacted significantly on Concord's ability to comply fully

with the requisite regulations under Ch. 766 it, developing

the 1987-88 IEP. | find that Concord intended to reconvene

the TEAM in September or October, 1987 to consider these

reports and assessments in connection with the 3-year

reevaluation (see letter from Steven Kaplan, Assistant

Director of Student Support Services, dated 6/12/87, Exh.

S-15-88, at pages 91-91). Under these circumstances, | find

that Mr. Berman's procedural objections to the formulation

of the 1987-88 IEP are without merit. Further, the record

clearly shows that the parents’ refused to consent to a 3-

year reevaluation up to the time of the hearing.

| now address Mr. Berman's charge that Concord's use

of a computer bank in preparing IEP’s effectively denied to

Matthew sufficient individualization so as to assure that the

IEP was tailored to address his unique special needs.

Denise Greene, Matthew's proposed teacher 1987-88,

testified that she wrote the following sections: profile,

special education services, and all academic goals and

objectives. Her input ceased at the conclusion of

Performance Level #13 (Exh. S-15-88, page 108), and she

did not write the goals and objectives for speech/language

therapy and socialization. Based on Ms. Greene's

testimony, | find that Concord used the computer bank only

when the materials were consistent with Matt's specific

special needs. When the computer bank did no’ reflect

accurately his individual deficit areas, | find that Ms. Greene

tailored them to Matthew's specific needs. Accordingly, |

dismiss, aS unsupported by the record, Mr. Berman's

assertion that Concord’s use of the computer bank in

preparing the 1987-88 IEP resulted in an inaccurate or

incomplete representation of Matt's special needs.

| turn my attention to a comparison of the substantive

merits of Concord's proposed 502.4 program and the 502.6

residential program at Landmark School during 1987-88

school year. | considered carefully the constraints imposed

by 603 C.M.R. 500.0 that states in pertinent part: "...

Children with special needs shall be placed outside the

ss inca era

45a

regular educational environment only when the nature or

severity of their special needs is such that education in a

less restrictive educational prototype with the use of

supplementary aids and services cannot be achieved

satisfactorily.” (emphasis added).

A starting point is a consideration of the professional

credentials of Matt's proposed serviced providers in

Concord, and his current teachers and supervisors at

Landmark. It is undisputed that all personnel designated in

Concord's IEP hold appropriate Massachusetts certification

or licenture. They have been deemed by the Department of

Education (DOE), or other state licensing agencies, to be

qualified and competent to provide services to school-age

handicapped children. | find that this is not the case at

Landmark. Archibald Campbell, Director of Guidance and

Campus Affairs, testified that four direct service providers to

Matt during 1987-88 hold neither DOE special education or

regular education certifications: Wendy Atwood

Pragmatics/Oral Expression; Lisa Kendrick-language arts;

Charlene Miller-mathematics; and Amy Landers-life

science. Mr. Campbell's testimony was confirmed by Ms.

Atwood and Ms. Kendrick who are responsible for

remediating Matthew's specific language disabilities.

To determine whether Matt's teachers at Landmark

engaged in a cohesive teaching approach, | relied on the

testimony of Deborah Blanchard, his Case Manager, who is

certified in moderate special needs, and Mr. Campbell. He

testified that 16 or 17 of the current 47 teachers on the North

Campus (Matt's learning site) hold moderate special needs

certification; further, in service training comprises a one-

week intensive summer course, augmented by four 2-hour

seminars dealing with varied special education topics

during the school year. Ms. Blanchard stated that teachers

adhere to a generalized Landmark philosphy. The evidence

is undisputed that Matthew's teachers did not meet as a

group during 1987-88 to discuss him individually, and his

specific learning deficits; to share updated information or

progress; or to address an integrated, consistent teaching

approach. My sense of Matt's teachers at Landmark is that,

in the absence of special, or regular, education training and

experience, they relied largely on their own resources to

46a

provide instruction to Matthew, a language-impaired

student, on a day-to-day basis.

In contrast, | find that Denise Greene, classroom

teacher, was totally involved in Concord's proposed

program. Not only was she the designated teacher in the

after-school component, but Dr. Miller testified that Ms.

Greene attended every session of the weekly counseling

group. The record is abundantly clear that cohesion and

integration were integral to Concord's program, and

afforded Matthew's principal teacher the responsibility for

dealing in a fully informed manner with the totality of his -

educational/emotional social special needs.

My focus is now directed to a discussion of the specific

service provisions set forth by Concord in its 1987-88 IEP

(Exh S-15-88). Ms. Greene testified that six students

comprised her 502.4 language-based class, and that the

range of learning disabilities were compatible with Matt. A

full-time tutor is assigned to the class who works directly

under Ms. Greene's supervision. They schedule meetings

every Friday to review each student's progress, update

relevant information, and plan the following week's

activities. His plan called for small group instruction in:

reading, grouped with two other students, concentrating on

decoding and comprehension skills; alternative math, with

two other students, with additional concentration on

language skills; and alternative English, with five students,

using a “language experience” approach through classic

adventure books, and student-developed plays. A daily

small group academic tutorial was incorporated to assist

Matthew in the acquisition of appropriate organizational

and study skills. In addition to the weekly socialization

group directed by Dr. Miller, and attended by Ms. Greene,

related services included two weekly sessions of

speech/language therapy, and a weekly period of

occupational therapy to deal with his fine motor deficits, if

deemed necessary following on OT assessment.

Based on Concord's perception of Matt's strong reading

comprehension skills, they offered Mr. and Mrs. M. the

option of choosing regular education social studies and

science, or to have these courses provided within the self-

contained 502.4 class. If the parents preferred the

‘it ee

47a

mainstreamed setting, Ms. Greene and the tutor would have

provided additional assistance, and small group academic

support was offered on a daily basis in the Learning Center.

Considerable attention was devoted at the hearing, and

in Mr. Berman's closing argument, to the reasons that

Concord amended the 1987-88 IEP on 7/29/87 to include

an after-school recreational/socialization program. This

service would be conducted in two-hour sessions, 2-3 times

weekly-depending on Matt's adjustment and ability to

generalize his social skills. | find incontrovertible support

that Concord did not receive BSEA's decision on #87-0073,

dealing with the 1986-87 school year, until some time after

the TEAM meeting on 5/26/87. Since Hearing Officer Carol

Kervick ordered Concord to “reconvene the TEAM to write

an IEP including after school services to provide Matthew

with meaningful opportunities for peer relationships” (Exh.

S-14-88), Concord complied on 7/29/87 (Exh S-11-88).

The meeting was attended by Mr. and-Mrs. M., Karl

Pulkkinen of Landmark School; Susan Carlson, Director of

Student Support Services, and Mr. Kaplan, Assistant

Director under Ms. Carlson. | am persuaded by the

testimony of Mr. M., Ms. Carlson, and Mr. Pulkkinen that the

format and frequency of this provision was fully explored

and discussed by the participants, and augmented by

considerations posed in Exh. S-22-88. Mr. and Mrs. M.

rejected the revised IEP on 8/28/88. | conclude, based on

Mr. M's. testimony, that the parents had decided prior to

7/29/87 to return Matthew to Landmark for the 1987-88

school year, and it was unlikely that they were prepared to

accept an IEP for 1987-88 that offered services within the

Concord Public Schools.

At this juncture, | will comment on a procedural

discussion that took place during the hearing on 3/8/88

pursuant to receipt by the hearing officer of a letter from Mr.

Berman, dated 3/2/88 (Exh B—3), to quash subpoenas to

Drs. Cushna, Kinsbourne, and Marcus (professionals

involved in Matthew's treatment), requested by Mr. Sullivan.

Essentially the discussion between Mr. Berman, Mr.

Sullivan and me revealed the following undisputed facts:

(For a virtually complete transcript of the discussion, see Mr.

Sullivan's closing brief at pages 34-36):

48a

(1). Mr. Berman agreed that Drs. Cushna, Kinsbourne,

and Marcus had “relevant information dealing with the

issues before this hearing”.

(2). Mr. Berman dismissed the “notion that you (hearing

officer) have an obligation to the child”.

(3). Mr. Berman stated that he didn't "have a great deal

of faith in the integrity of the administrative process”.

In carefully analyzing the evidentiary standard of review,

as enunciated in Town of Burlington v. Department of

Education, 736 F.2d 773 (1984), at pages 30-36. | relied on

the following dicta, in pertinent part:

"A trial court must make an independent ruling based on

the preponderance of the evidence, but the Act

contemplates that the source of the evidence generally will

be the administrative hearing record, with some

supplementation at trial... The determination of what is

‘additional’ evidence must be left to the discretion of the trial

court which must be careful not to allow such evidence to

change the character of the hearing from one of review to a

trial de novo. (emphasis added)

"... a court should weigh heavily the important concerns

of not allowing a party to undercut the statutory role of

administrative expertise, the unfairness involved in one

party's reserving its best evidence for trial, the reason the

witness did not testify at the administrative hearing, and the

conservation of judicial resources.” (emphasis added)

| find incontrovertible evidence upon which to conclude

that Mr. Berman's effort to quash subpoenas to Drs.

Cushna, Kinsbourne, and Marcus, requested by Concord,

stemmed from his intent to withhold relevant evidence from

the administrative hearing, to demean the statutory role of

administrative expertise, and to bypass the due process

framework generated by federal and state provisions in

order to consolidate this decision, with the prior decision, in

Federal District Court. | find that the U.S. Court of Appeals

supra has held that the court places weight, reliance, and

credibility on the administrative record, and that the court

considers it unfair for a party to reserve its best evidence for

trial.

This- procedural discussion now leads me to a

consideration of Matthew's emotional health - the main

49a

thrust of the parents’ argument to maintain his residential

placement at Landmark. In determining the nature of Matt's

emotional/social special needs, and whether these needs

could be met appropriately during 1987-88 in the Concord

Public Schools, | weighed the testimony of Dr. Michael

Marcus, psychiatrist. Dr. Marcus is Board certified in

child/adult psychiatry, and has been in private practive

exclusively since 1983 with two-thirds of his practive

dealing with children and adolescents, and one-third with

adults. Dr. Marcus’ first meeting with the parents was on

10/29/87, and to the date of his testimony, he had seen

Matthew individually during thirteen 45-minute sessions

every two or three weeks.

Dr. Marcus testified that the focus of his therapy with

Matt were issues dealing with self-esteem and peer

acceptance. He observed that Matthew shuffles in his chair

a lot, that Matthew demonstrates no unusual hand motions,

and that Matthew evidences much anxiety that Dr. Marcus

considered as “normal for any adolescent”.

Dr. Marcus related that the only time Matthew

threatened self-harm was if he could not remain at

Landmark. However, Dr. Marcus testified that he did not

advise Mr. and Mrs. M, or professionals at Landmark. In fact,

Dr. Marcus acknowledged that he has not spoken directly to

any Landmark professional during his treatment of Matthew,

and reviewed only the 1/88 Landmark progress reports

(Exh. P-12-88).

Dr. Marcus was not present during Dr. Miller's

description of the weekly counseling small group

designated in the 1987-88 IEP. However, he testified that

he considered compatible group therapy appropriate since

issues of social interaction and self-esteem are normally

addressed, and it is likely that Matthew would have

benefitted. Further, Dr. Marcus stated that he conducts

therapy groups for three different age-ranges that allow

youngsters to remain in public school settings despite their

learning and social interaction problems.

Based on the evidence cited supra, | am unpersuaded

that Matthew's problems with self-esteem and peer

interaction were so severe as to warrant a 502.6 residential

placement at the Landmark School. Clearly, Concord had

OO eE ee

50a

in place a small therapy group designed to address the

identical issues that are the focus of therapy by Dr. Marcus. |

find support in Dr. Miller's testimony that she had the

expertise and experience, gained over 4 or 5 years of

implementing the counseling group at the Peabody Middle

School, to remediate Matt's emotional/social special needs.

Buttressing my support is Dr. Marcus’ testimony that

children attending his therapy groups are able to remain in

public school systems despite their learning and social

interaction problems. Absent in the record is any compelling

evidence upon which to conclude that Matthew's

educational/social/emotional problems required a

residential placement at Landmark during 1987-88 - the

most restrictive learning environment envisioned under

federal and state special education schema.

| am cognizant of Matt's behavioral gains as described

by Mr. M.: (Il) More helpful around the house, (2) Improved

relationship with his brother, (3) Demonstrates affection to

family members, (4) More acceptable to neighborhood

friends, (5) Dramatic improvement during visits to homes of

family, (6) Responsible for returning home on time from

outside activities; and (7) More appropriate behavior at

restaurants and shopping mails.

Although these behavioral gains speak to a level of

maturation achieved by Matt, | am unconvinced that a nexus

exists with his enrollment at Landmark. First, Or. Marcus

testified that he had no direct contact or conversation with

any Landmark professional during 1987-88. Therefore,

apparently no sharing of information took place that would

allow direct service providers at Landmark, academic and

residential, to assist Matt in generalizing any skill gains

derived from his therapeutic sessions with Dr. Marcus. The

record further shows that Landmark provided neither

individual nor group counseling to Matthew, and that

intended psychological screening was intended to be

implemented in early fall 1987, but was never done.

| conclude, based on the testimony of Mr. and Mrs. M.,

that the main reason that they maintained Matthew's

residential placement at Landmark during 1987-88 was his

fear of continuing scapegoating in the Concord schools that

allegedly took piace’in earlier grades. | rely on Dr. Miller's

5la

testimony that no incidence of scapegoating was reported

by any student in the counseling group during 1987-88, and

that if it had occurred to Matthew, she would have

addressed the problem in an expert, competent, and

sensitive manner.

Based on the voluminous testimonial and documentary

evidence before me, | find that the 1987-88 IEP proposed

by the Concord Public Schools on 6/12/87, and later

amended on 7/29/87 to provide an after-school component,

was reasonably calculated to promote Matthew M.'s

maximum feasible educational benefits in the least

restrictive environment, as mandated by the legal

requirements pursuant to 20 U.S.C. 1401 et seg and M.G.L.

Ch. 71B. In fact, considering the totality of Matthew's special

educational/emotional/social needs, and the calibre,

expertise, and competence of his proposed direct service

providers at Concord responsible for addressing these

special needs, | find that Concord’s 1987-88 program far

exceeds his educational program at Landmark School.

Accordingly, | find that the Concord Public Schools are aot

financially responsible for Matthew M.'s 502.6 residential

placement at the Landmark School during 1987-88 school

year.

LIST OF PARENTS EXHIBITS

P-1-88 Landmark Staff/Student Ratio: Fall Schedule

‘ 87-' 88

P-2-88 Landmark Staff/Student Ratio: Spring

Schedule ‘87-'88

P-3-88 Letter from Dr. Bruce Cushna to Steven

Kaplan 2/1/88

P-4-88 Teacher Assignments at Landmark with

Resumes, Certifications, References: 1987-

1988

P-5-88 Diagnostic Educational Reports: 11/6/87

P-6-88 Comparative Test Results with Most Recent

Protocols: 7/86 to 10/87

P-7-88 Letter from Kirk Swanson to the Parents:

5/29/87

P-8-88 Disciplinary Committee Report: 6/1/87

P-9-88

P-10-88

P-11-88

P-12-88

a~2O® N OALWN —

QOD YDOND YD OHHHHY

@oa@m oo

Co @

52a

Objectives for Pragmatics/Oral Expression

Class: 1987-1988

Auditory/Oral Expression Placement Test:

9/10/87

WISC: 11/12/86

Landmark Progress Reports: 1/88

LIST OF CONCORD'S EXHIBITS

2/5/88; letter from to Kaplan from Merrifield.

2/3/88; letter to Berman from Sullivan.

2/3/88; letter to Merrifields from Kaplan.

1/29/88; letter to Merrifields from Kaplan.

1/22/88; letter to Cushna from Kaplan.

Psychological Study-Bruce Cushna with

copy of certified envelope.

11/25/87; memo-Phyllis Kermack, Secretary

Student Support Services with attachments.

11/23/88; letter to Merrifields from Carlson.

11/9/87; letter to Merrifields from Carison.

9/11/87; letter to Kervick from Carlson.

7/30/87; letter from Carlson to Merrifields with

the Amendment to IEP and IEP.

7/14/87; letter to Betsy Burch from Kaplan.

7/14/87; letter to Kervick from Kaplan.

Decision - Bureau of Special Education

Appeals Matthew M. v. Concord Public

Schools.

6/12/87; letter to Merrifields from Kaplan with

IEP for 1987-1988.

4/23/87; letter to Merrifields from Carlson.

1/11/88; letter to Kristen Apgar from Richard

Sullivan.

7/24/87; letter from Archibald Campbell to

Pamela Kaufmann.

5/8/87; letter from Charlies Harris to Lorraine

Moore.

6/6/86; letter from Ms. Moore to Mr. Campbell.

1/20/87; letter from Ms. Kaufmann to Charles

Drake.

53a

S-22-88 7/23/88; Considerations for after-school

program.

S-23-88 Notes by Susan Carlson: 5/29/8 Notes by

Denise Greene: 5/26/87

S-24-88 Goals and Objectives.

S-25-88 Vita of Dr. Barbara Miller.

S-26-88 List of Proposed Teachers: 1987-1983.

S-27-88 PPVT-6/86

LIST OF BSEA EXHIBITS

B-| Subpoena issued to Mr. R.M.: 2/14/88

B-2 Subpoena issued to Archibald Campbell:

2/16/88

B-3 Letter from David Berman to Phyllis Ryack:

3/2/88

B-4 Subpoena to Dr. Michael Marcus: 3/23/88

Letter to Ms. Apgar from Dr. Marcus: 3/25/88

B-5 Subpoena to Dr. Marcus: 5/6/88

54a

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide

an electronic verbatim record of the hearing to any party

upon request. M.G.L. c. 304. §11(6) and 14(4) set forth the

requirements for making available to a party or a court an

Official record of the proceedings.

30A 51t(6) Agencies shall make available an official

record, which shall include testimony and exhibits,

and which may be in narrative form, but the agency

need not arrange to transcribe shorthand notes or

sound recordings unless.requested by a party. If so

requested, the agency may, unless otherwise

provided by any law, require the party to pay the

reasonable costs of the transcript before the agency

makes the transcript available to the party.

30A §14(4) Within forty days after service of a copy

of the petition for review upon the agency, or within

such further time as the court may allow, the agency

shall file in the court the original or a certified copy of

the record of the proceedings under review. The

record shall consist of (a) the entire proceedings, or

(6) such portions thereof as the agency and the

parties may stipulate, or (c) a statement of the case

agreed to by the agency and the parties. The

expense of preparing the record may be assessed

as part of the costs in the case, and the court may,

regardless of the outcome of the case, assess any

one unreasonably refusing to stipulate to limit the

record, for the additional expenses of preparation

caused by such refusal. The court may require or

additions to the record when deemed desirable.

Thus, if either party requests of the Bureau of Special

Education Appeals a certified written transcription of the

entire sound recordings, or a portion thereof, that party must

arrange for the transcription of the sound recordings at their

own expense. Transcripts prepared by the party must be

submitted to the Bureau of Special Education Appeals for

55a

certification within 35 days of service of a copy of a petition

for review upon the agency.

RECONSIDERATION OF DECIS10N:

.Reconsideration of the case may be granted upon the

showing of any serious error of law; misconstruction of the

rules, regulations and policies of the Department of

Education; or upon the discovery of material evidence

existing at the time of the hearing, but not introduced, which,

if proven, would be likely to alter the conclusion of the

decision. Written application for reconsideration of such

cases may be made by either party to the hearing officer

who heard the case and in consultation with the Director of

the Bureau of Special Education Appeals, such application

may be granted or denied within the discretion of the

Bureau. Application should be made within a reasonable

time after the decision.

EFFECT OF DECISION AND RIGHTS OF APPEALS:

The public school and the parent,may file a petition for

review in the Superior Court of competent jurisdiction or in

the District Court of the United States. Appeals to Superior

Court must be filed within 30 days after receipt of the Final

Decision of the Bureau of Special Education Appeals. The

Decision is final and must be implemented immediately,

unless the case is appealed to court. While a court appeal

is pending, the public school is responsible for maintaining

the child in the program !ast agreed upon by the school and

the parents unless the party seeking a change of that

placement obtains a preliminary injunction in court ordering

the change. Regardless of which party pays for a child's

private school placement while a court appeal is pending,

ultimate fiscal responsibility may rest with the party that

loses in court (Burlington S.C.v. DOE, 105 S.Ct. 1996 ( 1985

))-

Any party unduly burdened by the cost of preparation of

a written transcript of the sound recordings may petition the

Bureau of Special Education Appeals for relief.

56a

COMPLIANCE:

lf either party believes that this decision is not being

complied with, he/she should request in writing a

compliance hearing. Said request should be as specific as

possible and should be addressed to the Director of the

Bureau of Specia! Education Appeals.

CONFIDENTIALITY:

In order to preserve the confidentiality of the child

involved in these proceedings when an appeal is taken to

Superior Court, or Federal District Court, the Bureau of

Special Education Appeals strongly urges the appealing

party to file the complaint without mentioning the true name

of the parents or the child (i.e., use only child's first name or

John or Jane Doe) and to move that all exhibits including

the transcript of the hearing before the Bureau of Special

Education Appe2ls be impounded by the court. If the

appealing party (when it is the School Committee) does not

seek to impound documents, the Department of Education

through the Attorney General's Office shall move to

impound the documents.

/s/

HEARING OFFICER

57a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 87—2107—Z

ROLAND M. and MIRIAM M..

VS..

THE CONCORD SCHOOL COMMITTEE and HAROLD

RAYNOLDS, JR.,as he is Commissioner of the

MASSACHUSETTS DEPARTHENT OF EDUCATION

PRETRIAL ORDER

ZOBEL, D.J

This matter having come before the Court at a pretrial

conference held pursuant to Rule 16, Fed. R. Civ. P., 28

U.S.C., and

David Berman, Esa.

Berman and More

100 George P. Hassett Drive

Medford, Mass. 02155

having appeared as counsel for plaintiffs, and

Richard N. Sullivan, Esq.

Kenney, Conley, Sullivan & Smith, P.C.

100 Grandview Road

Post Office Boy 9139

Braintree, Mass. 02184

having appeared as counsel for defendant, Concord

School Committee, and

Richard M. Brunell, Ass't Atty. General

One Ashburton Place, Rm. 2019

Boston, Mass. 02108

58a

having appeared as counsel for defendant, Commissioner

of the Massachusetts Department of Education, the

following action was taken:

1. TRANSCRIPTS

January 23, 1989. They shall at the same time provide a

copy to the Town at its cost.

2. DISCOVERY

Any further submissions concerning the Town's motion

shall be filed by February 6, 1989. The Court will decide

whether to hear argument after a review of the papers.

3. TRIAL

A non-jury trial is scheduled to commence on April 6,

1989, at 9:00 a.m., and is expected to last 1-2 days.

4. ISSUES

(a) With respect to the 1986/87 school year i. whether

the IEP provided the mosi appropriate placement,

given that it contained no after school component;

and

ii. whether the Commissioner of the Massachusetts

Department of Education had the legal or

equitable authority to order the Town to pay one-

half of the private school costs, given his findings.

(b) With respect to the 1987/88 school year

i. whether the Landmark School was the most

appropriate placement, given the child's progress

in 1986/87;

ii. whether the IEP was developed in accordance

with the correct legal standard; and

iii. whether the hearing officer applied the correct

legal standard.

’

59a

5. EXHIBITS

The parties agree that the only exhibits in evidence are:

i. the transcripts of the hearings; and

ii. the exhibits introduced at the hearings.

/S/January 201989 = /S/ DISTRICT JUDGE

60a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 87-2107-Z

ROLAND M. AND MIRIAM M.,

PLAINTIFFS

THE CONCORD SCHOOL COMMITTEE AND HAROLD

RAYNOLDS, JR., AS HE IS COMMISSIONER OF THE

MASSACHUSETTS DEPARTMENT OF EDUCATION,

DEFENDANTS

MOTION IN LIMINE IN OPPOSITION

TO ADMISSION OF ADDITIONAL EVIDENCE

Now comes the Defendant Concord School Committee and

requests, in limine, that the Court preclude the admission of

additional evidence in this civil action. In support

thereof,the Defendant asserts:

1. The Plaintiffs withheld the testimony they now seek to

introduce in court as additional evidence in a deliberate

attempt to undercut the statutory role of administrative

expertise and receive a trial de novo in clear contravention

of the law; and

2. The Plaintiffs’ attempt to introduce additional

evidence at this time, contravenes the procedural

framework mandated by the Education of the Handicapped

Act, is inherently unfair, and encourages parties to reserve

evidence for the review process rather than presenting their

case in its entirety at the administrative level.

/S/ Allowe

R. Zobel, J.

3/10/89

Filed in open court 1/19/89

61a

UNITED STATES DISTRICT COURT

DISTRICT COURT OF MASSACHUSETTS

VS.

CIVIL ACTION NO. 87-2107—Z

ROLAND M. AND MIRIAM M.

THE CONCORD SCHOOL COMMITTEE, ET AL

MEMORANDUM OF DECISION

ZOBEL, D.J.

I PROCEDURAL BACKGROUND AND FACTS:

Plairitiffs’ son, Matthew, is a student with special needs

as defined by the Education of the Handicapped Act, 20

U.S.C. § 1401 (EHA) and Mass. Gen. L. ch. 71B. He is

entitled to receive an education that will “assure his

maximum possible development in the least restrictive

environment consistent with that goal."- David D. v.

Dartmouth School Comm., 775 F.2d 411, 423 (Ist Cir.

1985), cert.den., 475 U.S. 1140 (1986).

In 1980, Matthew began school in the Concord public

school system. At that time, Matthew was placed in

Kindergarten at the Thoreau school with a supplemental

afternoon session in the Therapeutic Preschool Program.

This arrangement followed evaluations by Dr. Szymanski (a

psychiatrist), by Dr. Cushna (a psychologist), a TEAM

meeting, and a detailed IEP developed in accordance with

the requirements of the EHA. The psychiatric and

psychological evaluations made by Drs. Szymanski and

Cushna found that Matthew had serious visual perceptual

problems, poor concentration, and had trouble settling

down. Matthew's teachers and other experts who examined

him also universally agreed that Matthew had weak fine

motor skills. In 1980, testing revealed Matthew to have an

1\Q of 88 and a Binet Mental Age of 5 1/2 (at the time,

Matthew was 5).

Matthew remained in the Concord public school system

62a

until the end of the 1985/86 academic year. By that time,

Matthew was spending most of his class time in a special

self-contained classroom; he was integrated into regular

classes for four hours each week. He was testing in the

“average” IQ range but still showed evidence of

hyperactivity, poor concentration, and weak fine motor

skills. He also had trouble relating to his peers in school. In

1985, Matthew was diagnosed as having “attention deficit

disorder.”

At the end of the 1985/86 school year, Matthew had

finished his program at the Willard public school and

arrangements needed to be made for his future educational

placement. In August 1986, the Concord School Committee

developed an IEP placing Matthew in a day program at the

Peabody School (a public school). On September 9, 1986,

plaintiffs rejected the proposed IEP and placed Matthew in

a private resideritial program at the Landmark School.

In February and March of 1987, the Bureau of Special

Education Appeals (BSEA) conducted aii administrative

hearing regarding the appropriate placement for Matthew

during the 1986/87 school year. On 29 June 1987, the

hearing officer (Hearing Officer |) rendered her decision.

She concluded that “the Concord 502.4 placement [wa]s

superior to the Landmark 502.5 program in credentials and

experience of staff, methodology, extent and types of

services, [and in] opportunity for mainstreaming.” The

hearing officer found, however, that since Matthew's

parents had acted reasonably in placing him in the

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.