# Petition for Writ of Certiorari — Roland M. v. Concord School Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3258%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 912 ## Text ee eer 90-944 ‘ities A Ew No In The Supreme Court of the United States. OCTOBER TERM 1990 ROLAND M. and MIRIAM M., PETITIONERS V. 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 11 15 17 18 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) 11 12,12n 18 11 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 9 12,13n,14n 9,17 10 ane Pliny TT ee s No. In The Supreme Court of the United States. ROLAND M. and MIRIAM M., Petitioners, V. 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. 2 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. 4 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 7 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 8 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 9 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: 10 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 11 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 12 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, 13 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. 14 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). 15 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 16 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." 17 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). 18 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 19 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; (C) written prior notice to the parents or guardian of the child whenever such agency or unit— 20 (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. (c) Review of local decision by State educational 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 21 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: 22 (!) 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. 23 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 24 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. (c) When a state court or a United States court of 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. la BUREAU OF SPECIAL EDUCATION APPEALS MATTHEW M. APPELLANT BSEA # 87-0073 V. CONCORD PUBLIC SCHOOLS APPELLEE June 29, 1987 BEFORE CAROL E. KERVICK, HEARING OFFICER LAWRENCE KOTIN, ATTORNEY FOR APPELLANT RICHARD SULLIVAN, ATTORNEY FOR APPELLEE 2a 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 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 Landmark School Landmark School Landmark School Attorney for Concord Observer, 3a 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 4a 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. 5a 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 6a 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: 7a "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 8a 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: CC 9a 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 V. 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 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 Landmark School Landmark School 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. ee 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 ae 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 ae 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 27a AUG16 1988 AUG 24 1988 BUREAU OF SPECIAL EDUCATION APPEALS MATTHEW M. APPELLANT BSEA #88-0086 V. 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 28a 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 29a 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 30a 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 31a 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, 32a 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 33a 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 34a 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 35a 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 a 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 EE 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 an [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3258%3A1. Public record. Not legal advice.