L.r. v township high school district no. 211

ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING

L. R. ) ) Student ) vs. ) Case No. 3002 ) TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer

DECISION AND ORDER

PROCEDURAL BACKGROUND

On November 13, 2003, counsel for the parents asked that due process proceedings be reinstated and on November 14, 2003, CAROLYN ANN SMARON was reappointed as hearing officer. The hearing officer contacted the parties to set a date and time for a prehearing conference and Notice of Prehearing Conference was issued on November 21, 2003. At that time, the parties discussed tentative hearing dates, with the hearing to begin on January 5-9, 2004. Another prehearing conference took place on December 4, 2003 and a prehearing conference report was issued and subsequently amended on January 6, 2004 identifying the issues and remedies.

The prehearing conference report identified the following issues and proposed

remedies: PARENT ISSUE: The parents allege that the local school district has failed to comply with the terms of a Settlement Agreement entered into by the parents and the local school district on November 5, 2002 including but not limited to the following issues: 1. Paragraph 3 of the Settlement Agreement provided that the parties would utilize the services of ALICE BELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL for the purpose of formulating, implementing and revising an effective behavior intervention plan. The parents allege that the local school district failed to implement appropriate functional behavioral analyses or behavior intervention plans. 2. Paragraph 4 of the Settlement Agreement provided that there would be modifications of the content or method of delivery of the student's Individualized Education Plan as an outgrowth of the functional behavior assessment and behavior intervention plan. The parents allege

that the school district failed to develop an appropriate Individualized Education Plan including related services e.g. speech/language, occupational therapy, updated assistive technology and sensory integration evaluations. 3. Paragraph 5 of the Settlement Agreement provided that the panel of experts would train staff in understanding the characteristics of Rett Syndrome, would train the staff in behavior management strategies and would train the staff in non-violent safety procedures prior to the initiation of her program. The parents allege that the local school district personnel failed to cooperate in attempts to provide the foregoing training to them. 4. Paragraph 9 of the Settlement Agreement provided for a panel of experts to devise a plan for the student's return to Conant High School. The panel of experts were unable to reach consensus upon a plan. The parents allege that the least restrictive environment for the student is Conant High School with appropriate supports and related services in place. 5. The parents allege that while the student was attempting to return to Conant High School on a full time basis, the local school district excluded the student from using the swimming pool. 6. The parents allege that at no time subsequent to the Settlement Agreement has the local school district provided a free appropriate public education to the student. REQUESTED REMEDY: 1. A finding that the local school has denied this student a free appropriate public education in the least restrictive environment. 2. An Order that the student's placement should be Conant High School. 3. An Order that the local school district employ an independent behavior specialist and such other specialists as the parents and the identified independent behavior specialist determine are necessary, to develop an appropriate Individualized Education Plan for this student. 4. An Order that the local school district employ the independent behavior specialist to (a) provide on-going training, monitoring, and consultation to local school district staff and to the student's parents; (b) have on-going authority for the implementation of the student's educational program at Conant High School including the ability to approve staff hired to work with the student, classes selected by the

student, and all other issues related to her educational program. In effect, the parents ask that the independent behavior specialist act as special master in the general supervision of the student's program. 5. An Order that the local school district provide two years of compensatory education to follow her successful graduation or aging out of Conant High School including educational, vocational, therapeutic and other services. At all relevant times, the parties by agreement extended the 45-day timeline for

conclusion of the due process proceedings. Testimony was received over forty-two (42) days with post-hearing Briefs submitted on August 9, 2004. The parties stipulated that the record would close on August 13, 2004 with the Decision to be issued on or before August 23, 2004.

PLEADINGS FILED BY THE PARTIES AND ORDERS ISSUED BY HEARING OFFICER

1. Notice of Prehearing Conference issued 11-21-03. 2. Parent's Motion to Exclude Psychiatric Evaluation and all Testimony

based on or related to Psychiatric Evaluation and to Quash School District's Request for Medical Records filed 1-6-04

3. Prehearing Conference Report issued 1-6-04 4. Prelininary Order issued 1-6-04 5. School District's Response to Motion to Exclude Psychiatric Evaluation

and all Testimony based on or related to Psychiatric Evaluation filed 1-14-04

6. Parent's Reply to School District's Response to Motion to Exclude Psychiatric Evaluation and all Testimony based on or related to Psychiatric Evaluation filed 1-15-04.

7. Preliminary Order re Psychiatric Examination issued 1-16-04 8. Preliminary Order issued 1-19-04 9. Parent's Motion to Exclude Testimony of Richard Van Acker based on

Settlement Agreement 10. School District's Motion in Limine to Bar Expert Opinion Evidence which

is materially based upon or has an element consisting of a process commonly known as "facilitated communication"

11. Preliminary Order issued 3-30-04 12. School District's Omnibus Motion to Bar Testimony of Certain Witnesses

whom the Parents seek to call at hearing filed 3-26-04 13. School District Motion to Bar Testimony of Dr. Malito 14. Preliminary Order issued March 30, 2004 re Daniel Cates, Edward

Rafferty and Nooshi Borhani issued 3-30-04 15. School District's Motion to Supplement District's Exhibit and Witness

Lists filed 3-9-04

16. Parent's Response to Motion to Supplement District's Exhibit and Witness Lists filed 3-23-04

17. Preliminary Order issued 3-30-04. 18. School District's Motion in Limine regarding use of Purported

"hypothetical" questions at the hearing filed 3-26-04 - no ruling issued 19. School District Motion to Supplement Record of Objections to Parents

Allegation of Existence of Conflict of Interest between Brooke Whittted and Dr. Leventhal (filed after 4-2-04)

20. Affidavit of Dr. Carl Albun 21. Affidavit of Dr. Jane Feldman 22. School District's Request to Introduce Rosemary Nizzi and Vic Morris

Rebuttal Evidence in the form of Affidavits or Alternatively an Offer of Proof

23. School District's Request to Introduce Dr. Leventhal Rebuttal Evidence in the form of his Affidavit or, alternatively, an Offer of Proof

24. School District's offer of Dr. Richard Van Acker as an expert in the field of Rett's Syndrome re medical research and successful educational interventions.

25. Preliminary Order re Leventhal Rebuttal Evidence 26. Preliminary Order re Van Acker as Expert 27. Affidavit of Vic Morris submitted by parents of the student - no objection

raised by the school district 28. Affidvit of Rosemary Nizi and Vic Morris submitted by school district -

no objection raised by the parents

FACTS

1. CONTEXT FOR SETTLEMENT AGREEMENT IN NOVEMBER, 2002 The student was first diagnosed with Rett Syndrome when she was thirty-five

months old and the diagnosis was confirmed when she was age six. According to records received from the student's elementary school district, the student was first found eligible for special education at the age of three. At that time, concerns were raised about her communication skills, her ability to interact with her peers, and her fine motor skills. These concerns are completely understandable considering the implications of the diagnosis: the student is almost completely non-verbal ("severe communication deficits") has inconsistent ability to control her body and limbs ("apraxia") and has the hand stereotypies of a girl with Rett Syndrome. The student presently communicates using augmentative communication devices, pointing (with and without physical assistance) and vocalizations.

In 1992, a psychiatric evaluation by Dr. Theodore Allchin resulted in a diagnosis

of a pervasive developmental disorder with the psychiatrist noting that the student had clear developmental delays in all areas, engaged in self-stimulation, showed an impaired ability to concentrate and to attend, had severely affected expressive language skills, and had frequent shifts from topic to topic with little interruption. The student's eligibility for

special education was changed to mental impairment, a change rejected by the student's parents.

While the student was still attending her elementary school district, the student's

eligibility for special education was changed to "other health impaired". The elementary records reflected related services from a speech therapist, occupational therapist and physical therapist.

The student commenced her freshman year at Conant High School, which is her

"home school" within School District 211. School District 211 consists of five high schools: Palatine, Fremd, Conant, Schaumburg and Hoffman Estates. The school district also operates Kirk School, Minor School, Northwest Suburban Academy and an alternative day school known as LEAP. Kirk School is a public day school for students with moderate and severe profound mental impairments. (R1870) No non-disabled students attend Kirk. Kirk accepts students from the school district, District 214 and some out-of-district students. (R2429) Minor School is a self-contained environment for students with severe learning disabilities. (R1875) Northwest Suburban Academy is a self-contained environment which typically serves students with emotional disturbances in a structured therapeutic environment. (R1876)

Hoffman Estate High School offers a continuum of services to its special

education students from regular education classrooms; resource drop-in center/resource service center where students can access IEP accommodations and some tutoring services; resource classrooms; instructional special education classrooms; support center classes; a self-contained program for students with emotional disturbances and the Secondary Work Experience Program (SWEP). Students in the SWEP program are typically students with mental impairments that are focusing more on functional academic skills while still taking courses that meet the requirements for graduation. There are two curriculum "tracks": regular education and general studies. Hoffman Estates also has a multiple needs program focused around communication and social skills. (R1873-1874) Within the multiple needs program there are students who are incorporated into the regular education environment, attend classes within regular education with different accommodations and modifications. The case manager assigned to such a student assists the teacher with the modifications and accommodations. That is the only multiple needs program within the school district (R2672). In contrast, Conant High School has neither the SWEP program or the multiple needs program. (R1877)

Conant High School is an overcrowded high school which offers a continuum of

services to its special education students in a regular education setting, a resource period setting, a general studies setting, and a self-contained classroom for students with emotional disorders. The students with mild mental impairments are served within the general studies setting. When a special education student's IEP calls for a self-contained multiple needs setting, the IEP team looks at the school district program at Hoffman Estates and determines if that placement will meet the student's needs.

Although the school schedule contained eight periods, during her freshman year, the student was scheduled for two resource periods per day in lieu of a study hall, lunch, Physical Education, Biology, English, Life Studies and Math. The student was placed in regular education classrooms with related services in the aforesaid areas and attended the classes with her own special education teacher and 1:1 aide. That teacher was responsible for modifying the curricular material to meet the student's cognitive and educational levels.

During the student's freshman year, she also had access to a "work room" created

by the school district as an area where the student could calm herself. The student returned to this area whenever she was unable to physically remain in the regular education classroom due to disruptive behaviors. Sequencing daily schedule, computer technology, private toileting, change of clothes and calming techniques were available within this isolated area. Behavioral data during her freshman year suggested that the student spent more than 50% of her day within the work room. The student's behavior vacillated between cooperative and compliant to agitated and noncompliant.

During the second semester of her freshman year, the student was absent a total of

sixteen days, due to family vacations, illness, out-of-school suspensions, and testing at the University of Chicago. The student's last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the student's behavior and the creation of a behavior intervention plan, the student's behavior interfered with the ability of the school district to provide an education to the student.

The parents presented the testimony of Alan K. Percy, M.D., a pediatrician

certified in neurology and neurodevelopmental disabilities. Dr. Percy is licensed to practice medicine in the State of Alabama and is employed by the University of Alabama at Birmingham. He also has teaching/hospital appointments at the University of Alabama as well as the Children Hospital of Alabama. Dr. Percy is the associate director of the University's Sparks Clinic which conducts interdisciplinary team evaluations of children with a particular focus on children with Rett Syndrome. Dr. Percy was accepted as a medical expert on the research, diagnosis and treatment of Rett Syndrome. Dr. Percy confirmed that the student has the MeCP2 gene mutation which affects overall rate of growth including brain development. In effect, if the brain does not mature and make connections between cells, then a person's thought processes, motor function, ability to receive external information and incorporate it into an idea or concept or an understanding of what is going on, is going to be limited by the fact that the brain did not develop in a normal way. (R7430) Dr. Percy testified that given the fine motor and communication skills of a girl with Rett Syndrome, available standardized tests are problematic. Dr. Percy was of the opinion that, based on his review of the literature, girls with Rett Syndrome typically have a mental age at the 8-10 month level. (R7393)

The parents brought the student to Dr. Percy's Sparks Clinic in Alabama during

the summer of 2002. Dr. Percy testified that he believed that the parents brought the student to the Sparks Clinic in June 2002 because her behavior was so aversive that they

wanted to rule out or eliminate any physical causes that could be an explanation for those behaviors before embarking on another treatment program with psychotropic agents. Other than tonsillitis, Dr. Percy could find no other physical causes for the student's aversive behavior. Dr. Percy testified that he recommended continued evaluation by a medical physician as well as a psychiatrist to determine if the student was taking the proper medications, if that was the treatment plan, or if her environment might be contributing to her problems. (R7382-7396)

In 2002, the school district was required to complete a three-year reevaluation of

the student. The school district sought and received parental consent for a multidisciplinary evaluation by the University of Chicago Developmental Disorders Clinic. The Multidisciplinary Report issued in August, 2002, concluded, inter alia, that the student's cognitive levels were scattered, from borderline and the moderate level of mental impairment. After reviewing the student's school records, the Clinic concluded that, despite the likelihood that the student was capable of functioning at a much higher level than demonstrated during the evaluation, her behavioral problems were the most significant issue as they so dramatically interfered with her functioning. The Clinic recommended that the student's disruptive and aggressive behaviors be brought under control effectively and promptly and concluded that behavior control should be the primary focus of her programming with academics taking a distinctly secondary role.

With all of this as a background, the parties participated in a meeting on August

23, 2002 to develop an Individualized Education Plan for the student's sophomore year. Jennifer Pearson, the assistant to the Director of Special Education for the school district, facilitated the meeting. As Assistant to the Director, Ms. Pearson works directly with the schools within the school district and the professionals within the schools in the day-to-day management of school operations. Typically she works with the department chairs, psychologists, social workers and with the IEP's of individuals brought to her attention as this student was brought to her attention. Ms. Pearson could commit district resources and often acted as facilitator for IEP meetings that she attended.

The IEP team concluded that it was difficult to fully appreciate the student's

cognitive potential and other capacities because her behavior grossly interfered with her ability to respond and the ability of staff to work in close proximity to her. After examining the data, the IEP team concluded that the student was receiving no academic benefit from her placement in regular education classes and, after developing goals and objectives which were functional in nature, directed that the student should be placed in a more restrictive self-contained program that intensely focused on implementation of a behavior management plan to address the student's maladaptive behaviors ("alternative day school"). The school district did not identify an appropriate alternative day school and the parents refused to accept the placement decision of the IEP team, indicating their desire to request an impartial due process hearing. In addition, the parents refused to waive the requirement of a ten (10) calendar day interval before placement could occur. The result of this stand-off was a stay-put placement at Conant High School with school scheduled to start on August 28, 2002.

On August 27, 2002, the school district filed a Verified Complaint for Injunctive Relief in the U.S. District Court for the Northern District of Illinois under Docket No. 02 C 6098 in an attempt to prevent the parents from exercising their right to "stay put" at Conant High School while due process proceedings were pending. The aforesaid Complaint alleged the behavior of the student and concluded with the allegation that continued placement at Conant High School was unsafe and would present a substantial likelihood of harm to the student and others. The school district was granted a temporary restraining order which was then extended, by agreement, to September 23, 2002. During that time period, the parents agreed to keep the student home on "home bound" services while the parties discussed settlement.

On August 27, 2002, the parents had filed a request for a due process hearing

officer and on August 29, 2002, this hearing officer was appointed. Simultaneously with the settlement discussions, due process proceedings commenced with a prehearing conference on September 23, 2002. At that prehearing conference, the parents identified the issue as follows:

PARENT ISSUE: The parents allege that the local school district has failed to provide the student with a free appropriate public education in the least restrictive environment in that it failed to utilize appropriate functional behavioral analyses or behavior intervention plans; failed to provide staff adequately trained in behavioral intervention; failed to use available information from independent consultants; failed to provide the student with appropriate related services; failed to provide accommodations and supports in a timely fashion; administered a psychiatric evaluation without parental consent; failed to take into account the student's health condition as a variable in her behavior; failed to adequately consider or utilize more intensive options within the local high school building; modified the student's Individual Education Plan without parental participation; and refused to allow the student to attend the local high school. The parents asked that the hearing officer find that the least restrictive

environment for the student was Conant High School with both regular and special education classes and participation in mainstream non-academic activities e.g. lunch, extracurriculars; for an Order that a functional behavioral analysis and behavior intervention plan be developed by an independent behavior specialist to be mutually selected by the parents and the local school district at local school district expense; that the behavior intervention plan so developed be implemented at Conant High School; that the independent behavioral consultant be retained by the local school to provide on-going training, monitoring and consultation to the local school district staff and the student's parents at local school district expense; and for an Order that the local school district provide the student with a "meaningful" academic program.

The foregoing is the context in which the parents entered into a Settlement

Agreement on November 5, 2004 and simultaneously withdrew their request for an impartial due process hearing. By the terms of the Settlement Agreement, it is clear that

the parties believed that they had agreed upon a process for reintegration of the student into Conant High School. However, the following facts, deduced from the testimony of the parties during these due process proceedings and the documents which the parties themselves generated in an endless series of letters and emails, demonstrate in convincing detail that the issue of the student's most appropriate placement is still very much an issue.

The parties entered into a Settlement Agreement on November 5, 2004 after

counsel for the parties labored for over a month to develop acceptable language. The parents continued to believe that the school district failed to adequately respond to the student's behavior during her freshman year. The school district continued to be convinced that the student's injurious behavior needed to be reduced incrementally in a self-contained program (whether at her home or elsewhere) before the student returned to Conant High School. Both parties agreed to disagree and waived their right to further litigate the August 27, 2002 placement decision or the alleged failures of the school district during the student's freshman year. Instead, the parties delegated to ALICE BELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL ("the Panel") the responsibility for formulating a plan for the student's return to Conant High School. The parties agreed that Alice Belgrade, Vic Morris and Mark Lenz would develop a functional analysis of the student's behavior and a Behavior Intervention Plan to facilitate the student's return to Conant High School and that Vic Morris would serve as the coordinator for the purpose of scheduling and coordinating the activities of the Panel. Finally, the parties agreed that the plan for the student's return was to reflect the "consensus" of the Panel and in the event that the Panel could not reach "consensus", the dispute would be returned to an impartial due process hearing officer or to Judge Kennelly in federal court. At that point, the hearing officer or Judge Kennelly were to "hear" from the experts as to the basis for their disagreements and thereafter resolve the matter.

2. NOVEMBER 6, 2002 THROUGH APRIL 21, 2003.

Vic Morris has a bachelor's degree and a master's degree in social work and

certificates/continuing education in the areas of autism and behavioral intervention. Vic Morris is a licensed clinical social worker and is certified to act as a school social worker. He has no classroom teaching experience. Prior to his employment by the North DuPage Special Education Cooperative (NDSEC), Vic Morris was a clinical social worker in residential and community based programs, dealing primarily with adolescent and family psychiatric issues.

In the area of autism, in 1989, he participated in a project co-sponsored by the

Illinois State Board of Education which provided consultative services in the area of autism and behavioral interventions. In 1994, he attended the Institute for Applied Behavior Analysis in Los Angeles where he studied under Gary Levinea in the area of functional analysis of behavior and proactive behavior interventions. In that capacity he studied the development of intervention strategies designed to minimize the occurrence of problem behaviors and nonaversive responses to problem behaviors. Vic Morris has

attended numerous workshops on the topic of behavior analysis. Vic Morris testified that he has a specialty in, focus in and interest in developing and providing behavior support to students which enables the students to participate in their classroom programs.

At present, Vic Morris is the administrator of program operations (essential the

assistant director) for NDSEC which operates specialized self-contained classrooms for students with multiple disabilities, cognitive disabilities or behavior disorders. In that capacity he is chiefly responsible for program development and supervision of program supervisors, the staff that coordinate and monitor the daily operations of all of the NDSEC classroom programs. Vic Morris is responsible for staff development and coordinating and developing staff development for certified and noncertified staff. He also coordinates and supervises an intervention strategies team which provides behavior and academic consultation to the Coop staff and its member districts.

Vic Morris also owns a consulting firm known as Intervention Development

which specializes in educational and behavioral programming for students with autism spectrum disorders. His firm offers its services to families and school districts. NDSEC provides special education services to eight school districts in DuPage County, Illinois.

Bennett Leventhal, M.D. is a professor of child and adolescent psychiatry and

professor of pediatrics at the University of Chicago. He also runs the Sonia Shankman Orthogenic School which is a treatment center for children with severe psychiatric illnesses who have been unable to maintain their functioning in community-based settings. The program serves children who have at least average intelligence and who do not have severe behavior disorders. He describes himself as a clinician, administrator and investigator with a large part of his work focusing on developmental disorders particularly early onset disorders in childhood, their diagnosis, causes, and treatment. Dr. Leventhal has been a physician for almost 30 years, is licensed in five states and is a child and adolescent psychiatrist. Dr. Leventhal has patients who have Rett Syndrome and he has come in contact with other patients who have Rett Syndrome who come to the Clinic. In addition, in his travels, he has seen numerous patients with Rett Syndrome. Dr. Leventhal described Rett Syndrome as a chronic condition where the girls plateau in their overall cognitive functioning and make limited gains after a certain point in time. He did not believe that the girls showed no gain, just limited gains and described Rett Syndrome as a chronic disabling condition. (R3903) He was offered and accepted as an expert in the area of child psychiatry with a focus and specialty in the area of child and adolescent psychiatry with a focus on early onset disorders in childhood, their diagnosis, causes, and treatment. (3897)

Dr. Leventhal had been one of the participants in the multidisciplinary evaluation

of the student in May and June, 2002. He recalled that the evaluators as a group were pretty used to using each others' data and observations, debating, arguing, fighting with each other until they could arrive at a consensus about diagnosis and treatment. Dr. Marea Winnega (psychologist) was and is the director of the clinic and organizes the process and directs the other evaluators. Dr. Leventhal was asked to do some observations, Dr. Tom Owley (psychiatrist) was asked to do some evaluations and Jeff

Salt (psychologist) was asked to do some observations as well. Ultimately Dr. Leventhal helped to review the data, discuss the case and try to help the team generate plans. As one of the signatories to the August 22, 2002 report, Dr. Leventhal was asked if he could identify which part of the report was authored by him and he answered as follows:

I don't think one could do it that way. We wrote and rewrote and edited this report together. There is not any one part of it that I wrote. I mean, it is a combined effort. It took three of us -- four of us, primarily Marrea and I, but certainly Marrea, Tom and I. I don't think one can distinguish one part from the other. (Leventhal R3917) Dr. Leventhal recalled that the team was concerned that the psychological tests

were being administered in a manner not envisioned by the test manuals i.e. the team was concerned by the fact that the student had motor skills problems and was being physically assisted for some of the testing. Ultimately the team concluded that based on how the student performed in the various test settings, some of her peak skills were in the borderline or mild mentally retarded area. Dr. Leventhal acknowledged that skills at that level were fairly atypical for girls with Rett Syndrome. However, the team had a fairly serious concern that the student's overall functioning might be considerably below that level. (R3920-3921)

In June, 2002, Dr. Leventhal believed that if the school district did good

programming, enhanced the programming in certain ways, managed the behaviors, and facilitated the student's communication skills, the student might be able to function at the borderline or mild mentally retarded level. (R3921) Dr. Leventhal recalled that the student had fairly loud vocalizations during the evaluation. He further recalled that the student's attention was variable but sometimes she could attend. Dr. Leventhal believed that it was difficult for the team to tell precisely where the student was functioning. But Dr. Leventhal repeated at this due process hearing what he apparently repeated in the federal courtroom in September, 2002:

I think we have been quite clear about this repeatedly that that wasn't our major concern at the time. And we felt that her behaviors were so disruptive that it made it difficult to know what was -- what her real capacity was. And we thought -- felt strongly that if we get her behaviors under control, we might have a better sense of her function. I don't think anybody else's work that I have seen thus far has suggested that there are young women who have-who are in the normal range of intelligence or the average range of intelligence. So we are still talking about a syndrome that is largely confined -- that largely includes people that have significant cognitive impairment. Much the same is true for autism. I mean, more than 75 percent have cognitive impairment. Why that is, what that means, I think is still an open question.(Leventhal R4011,4021) (Emphasis added)

Dr. Leventhal testified that the team recommended that the student be placed in a self contained setting that was very highly structured to help manage not only the student's behavior but also to provide her a certain set of skills that would then allow her to function more flexibly and more broadly in other environments. (R3926) with a further recommendation that the student be reassessed in a year to see if they could get a more accurate impression of her cognitive abilities. (R4057)

Dr. Marrea Winnega testified at the due process hearing and further explained

her participation in the multidisciplinary evaluation of the student in May-June, 2002. Dr. Winnega has a Ph.D from the University of Illinois at Chicago in 1991 in clinical and developmental psychology and is licensed as a clinical psychologist. Dr. Winnega is an assistant professor in the department of psychiatry working with the psychiatry interns in the area of autism spectrum disorders. She is also the director of the Developmental Disorders Clinic at the University of Chicago Department of Psychiatry. Prior to becoming the director of the Clinic, Dr. Winnega was an employee at AERO Special Education Cooperative for five years. She still acts as a consultant to the Cooperative in the area of autism and related disorders. At the same time as her employment by AERO, Dr. Winnega had a private practice. Dr. Winnega has participated in or has been part of the assessment or reevaluation of five girls with Rett Syndrome. Prior to her evaluation of this student, Dr. Winnega had been involved in the assessment of two other girls diagnosed with the Syndrome.

The goal of the evaluation was to provide an update of the student's current level

of functioning including an assessment of her progress for educational purposes, all with the purpose of updating her IEP and making a plan for the upcoming year. The evaluation did not address the issue of the student's level of educational progress. The testing took place over three days, two days at the University of Chicago and one at the student's home. During informal observations of the student, Dr. Winnega concluded that the student seemed to have the ability to recognize words and appropriately use a symbol or picture to identify or describe them. In that regard, Dr. Winnega testified that the student appeared to have some reading and decoding of words, possibly at the kindergarten level. (R2025)

Dr. Winnega administered the Peabody Picture Vocabulary Test, Third Edition

("Peabody") and the Ravens Progressive Matrices Form Board ("Ravens"). The Peabody is often used as a measure of cognitive abilities. In Dr. Winnega's readings on Rett Syndrome at that time, it was suggested that the Peabody was a good assessment to use for girls with Rett Syndrome. The Peabody measures one-word receptive vocabulary. It is also looked upon in the field of psychology testing as a measure of cognitive functioning and correlates well with standardized IQ testing. (R1932, 2862) Typically a psychologist would start the student at their chronological age unless there is a developmental problem and then you would start lower. Dr. Winnega viewed the student as having a developmental disability and had information from the school that the student had been "untestable". Consequently she did not start the test at the student's chronological age. (R2899). The Ravens utilized by Dr. Winnega was considered by her

to be a good nonverbal assessment of the student's cognitive functioning. Dr. Winnega administered the Ravens to the student because she was doing fairly well on the Peabody.

The evaluation reported that when the student received physical assistance to

unclasp her hands, , she had great difficulty with the Ravens. When the student received physical assistance to unclench her hands AND physical support for her dominant arm, she responded to 10 out of 12 items correctly. Dr. Winnega reported that with the physical assistance of her mother, the student achieved a standard score of 78 which fell within the Borderline range of cognitive functioning. Dr. Winnega testified that there are no age equivalents on the Ravens. (R2061) Dr. Winnega computed the ratio/IQ at 12-0 years.

The student achieved a standard score of 55 on the Peabody which has an age

equivalency of 7-0 which falls within the extremely low range. Within the evaluation, Dr. Winnega reported that a ceiling was not obtained and at best, the results should be considered an estimate of the student's ability. However, Dr. Winnega testified that the age equivalent scores on the Ravens and the Peabody were not a direct measure of academic achievement. Dr. Winnega testified that a more precise description of the student's cognitive levels would be to state the results obtained on the Peabody represent the student's minimum levels of cognition. With respect to the Ravens, Dr. Winnega testified that the test was completed but the level of physical assistance affected the answers provided by the student. Nonetheless the score obtained on the Ravens indicated that the student was functioning at the borderline range of cognitive function, right above the level of "retarded" (R2916-2917)

Dr. Winnega recalled that the multidisciplinary evaluation recommended a

functional analysis of the student's behavior and development of a new behavior plan. The Clinic recommended that the analysis and behavior plan should be developed in a stable very controlled environment with a particular focus on the student's aggressive behaviors. Regarding placement, the Clinic recommended a highly structured, self-contained setting that could develop and operate an intensive behavioral intervention for aggressive and self-injurious behavior while also addressing fundamental skills such as basic compliance training, a self-contained special education program that has very strong behavioral training capabilities. It was the judgment of Dr. Winnega that the intensive behavior management that the Clinic was suggesting could not be done in a regular education setting and could not be implemented at Conant High School (2189)

Alice Belgrade has a masters in education and thirty additional hours of training

in behavior analysis. She is certified by the State of Illinois as a behavior therapist and held a Type 10 teaching certificate in social and emotional disorders. During the mid-1980's, Alice Belgrade taught in multiple needs classrooms serving students with both physical disabilities as well as cognitive impairments and behavior disorders. She does not have the LBS-1 special education certification currently offered by the State of Illinois. Alice Belgrade has been a licensed clinical professional counselor for about five years and is currently employed by another school district as its behavior analyst. In addition to the foregoing educational and employment information, Alice Belgrade

testified that she is the co-founder of a private behavior consulting firm known as Chicago Behavior Consultants and was and is the consultant retained by the parents of the student to work with the student in her home. Ms. Belgrade explained her "process" as follows:

With the children, I would go into either the group home or a private home or a school, conduct a series of observations in order to finalize a functional analysis of behavior, identify the target behavior, understand the relationship between the environment, the behavior and the maintaining consequences, look at the child as a whole given their biology and their history and develop a real comprehensive behavior shaping program to address the targeted needs. And once that program was developed out of the functional analysis, we would train the staff, parents, caregivers, it could include grandparents, on the implementation of that plan. (Alice Belgrade R7017-7018) Alice Belgrade testified that she uses an ABC (antecedent/behavior/consequence)

analysis when she observes a student in the home or at school. The antecedent refers to what was occurring in the environment just before a behavior is emitted as distinguished from the trigger/cause of the behavior. Her analysis consists of reviewing data to see if there are any patterns in terms of how the behavior corresponds to the particular antecedents. And then she would look to see if the consequence results in reinforcement of the behavior or suppression/punishment of the behavior. Ms. Belgrade believes that a behaviorist can shift or manipulate the variables by changing the response to the behavior. She defined a "setting event" as something that occurred in advance of the antecedent, conditions that might simply set the occasion or set up a likelihood that a behavior will occur e.g. there are no communication boards available. The "establishing operation" (student had not had breakfast) would determine whether the consequence was either reinforcing or punishing the targeted behavior.

Ms. Belgrade is of the opinion that it is essential that there be a person on-site at

the school who was a link to her. She believes that that individual would have a background in special education but no formal training in behavior analysis but had been trained by Ms. Belgrade in all aspects of a behavior plan. This person would supervise the implementation of the plan by either a teacher or an aide and be in frequent contact with Ms. Belgrade (2-3 times/week) with specific questions for feedback regarding particular situation as they arose. Ms. Belgrade was involved in the implementation of just such an arrangement for a second grader who had Downs Syndrome in a situation where another due process hearing officer mandated the arrangement.

Alice Belgrade first visited the student's home on July 25, 2002 and based on her

observations of the student, concluded that the student was "high functioning". She testified that she had had conversations with the student where the student has "spelled" what she was trying to communicate. Prior to working with the student, Ms. Belgrade had had no communication with the school district and had no school-based information

as to the student's educational performance. This is how Ms. Belgrade described her interactions with the student in her home environment:

there is an alertness of behavior and affect that after years and years of seeing kids and watching their subtle responses to various people and things in the environment, I have come to recognize a basic level of functioning in a child. Now, anyone can be wrong. There is no scientific certainty about these things. But on the first visit, I remember that what struck me was her alertness, her -- the way that her body language was oriented to me, the way that she answered questions, her facial affect. I asked her -- and because I felt that this was a child who -- where she was nonverbal, I felt cognitively that she was not profoundly mentally impaired. I felt there was a level of functioning there. I asked her if she could would she like to be able to say anything she wants. And unassisted she pointed to the yes card. (Alice Belgrade R7089-7090) Ms. Belgrade is of the opinion that the student's vocalizations are a form of

communication e.g. when you ask the student a question, she will often try to answer you vocally. In her experience, when you provide a communication device, the student will certainly utilize the device but sometimes she will still attempt to speak. (R7098-7099)

After her first home visit, Ms. Belgrade reviewed a video of the student at home

engaged in various daily activities prepared by the parents, and conducted interviews with the family. Then Ms. Belgrade prepared a behavior intervention report dated 8-29-02 (PARENT 2-10) to address what she viewed as the target behaviors: vocalizing at inappropriate times and undesired physical contact with others. Preliminarily, Alice Belgrade recommended that high preference choices be forfeited if the aggression was severe - "consequence/punishment". That part of the plan was abandoned by the time her next behavior plan was developed. Alice Belgrade believed that sustained vocalizations in the classroom were not appropriate and disruptive. She wanted to work with the student at home to provide her with some control or delay in the vocalizations. Alice chose those target behaviors as being prominent in disrupting the student's relations with others and in the context of a school-based type or program. In Ms. Belgrade's opinion, instead of using punishment to change or modify undesirable behaviors, a behavior intervention plan should focus on teaching how to actually shape positive constructive behaviors. ("shaping protocol") (R7110-7114)

3. PANEL ACTIVITIES

It is clear from his testimony that Vic Morris understood that the panel would

provide oversight and consultation to the IEP team in its review and development of strategies for the student's education program. Vic Morris believed that the panel was charged with completing an assessment of the student's educational program, individual components of that, and developing strategies for her return to school (R.2316) After learning that the panel would include Bennett Leventhal and Alice Belgrade, Vic Morris recalled that he was asked to facilitate or coordinate the panel. As a panel member, he

was provided with a fairly complete educational history (evaluation data, Individual Education Plans, functional assessments, progress reports, classroom logs and variety of other data (R2286) from the school district along with information specific to Rett Syndrome from the mother of the student. Vic Morris also met the student at her home on December 6, 2002. The student communicated by using yes/no on a communication board with physical assistance from her mother. She moved back and forth between the family room and the kitchen where Vic Morris was sitting with Mark Lenz. The student played Yatzee with her mother and Mark Lenz.

Dr. Leventhal understood that the parties had agreed that a panel would be

assembled to monitor and make recommendations about the student's continuing education. It was his understanding that Dr. Winnega and the rest of the University of Chicago team could participate in the panel either with him or with his direction. From the beginning, Dr. Leventhal had reservations about whether the student could be reintegrated back into Conant. But Alice Belgrade was of the belief that she could do some things that would allow reintegration to happen and would be able to train the staff to do that and Dr. Leventhal concluded that it was worth a try. (R3934-3935)

Well, Alice seemed to feel that using some of the behavioral techniques in which she had expertise, that she would be able to help manage some of the aggressive behavior and vocalizations to the point that it would be easier for the student to function in a more open school setting. (Leventhal R3936) On December 11, 2002, Vic Morris scheduled a meeting at his office for the

panel members, the family and its legal representatives, and the school district and its legal representatives. The purpose of the meeting was to review the function and purpose of the panel and establish an initial course of action for the panel. According to Alice Belgrade, the panel members did not need to discuss terminology (ABC Analysis, setting events, establishing operations) because they were all using the same terminology and all understood each other. Vic Morris asked her to collect data on the various conditions that might or might not affect the student's behavior in the home.

On December 17, 2002, the panel members met at Alice Belgrade's Chicago office

to review the initial information and review the file relative to the student. At that meeting the panel members discussed an allocation of tasks and responsibilities and planned to reconvene to discuss those tasks and responsibilities as needed. The panel established a goal that Alice Belgrade would continue to work directly with the student, providing direct behavioral and instructional support for her in her home. Ms. Belgrade recalled that she was to test out conditions to see what situations, what antecedents had an effect on the student's behavior. (R7194) The panel agreed to use and rely upon the on-going data and summary data that Alice Belgrade had compiled and continued to compile during her work with the student at her home. Dr. Leventhal was to review the medical records and provide consultative support. Vic Morris's role was to review the environments available at Conant High School and to help develop behavior support strategies that might be helpful at Conant. Vic Morris did not believe that the Panel had a

role in consulting and advising the IEP team about academic adaptations for the student. From Vic Morris's perspective and from the perspective collectively of the panel, they were limited to those issues that were off-shoots of their functional assessment of the targeted behaviors of concern and that would be the focus of the panel's recommendation (R2326) Alice Belgrade recalled that she believed that it was critical that the staff working with the student have a consistent understanding of the targeted behavior and how they were to be recorded.

The data collection form developed by the Vic Morris and Alice Belgrade defined

sustained vocalization as a vocalization that masks or covers the teacher's voice lasting in excess of one minute. However, there was no operational definition of the term "intense vocalizations". PARENT 7-31 Alice Belgrade recalled that she and Vic Morris definitely agreed upon the definition for "sustained vocalizations" because they were involved in actually creating a data sheet for this targeted behavior. (R7066)

The panel proceeded with a functional analysis of the student's behavior. Ms.

Belgrade was of the belief that behaviorists need at least five observations to assess whether there is a pattern to behavior. Ms. Belgrade believed that behaviorists also agree that the observation should be for at least a two hour period. Ms. Belgrade also believed that behaviorists would give six weeks as the basic time to "test" whether the intervention plan is working.

The panel participated a conference call on February 14, 2003 during which,

among other things, they discussed their views as to the student's cognitive levels. Bennett Leventhal based his views on Dr. Winnega's testing. Alice Belgrade based her views on anecdotal evidence gathered during her visits with the student in her home. The panel ultimately concluded that having a strategy for handling the student's behavior was of greater urgency. (R7812)

Prior to the student's return to Conant High School in the Spring, 2003, Vic

Morris completed an environmental map of Conant High School which was essentially a survey of available environments within the school, an assessment of a student's access within the physical environment of a school building for students with disabilities. (R2395). In that connection, Vic Morris noted the distance between the work room and some of the academic environments in which the student would participate. Vic Morris did not see that distance as preventing the student from participation in her classes although he did ask if there were any intermediate "stops" for the student within the building. The Conant High School staff was unable to identify any "stops". (R2231-2232)

On February 14, 2003, Alice Belgrade prepared a draft of a behavior intervention

plan. PARENT 9-76. Vic Morris then developed a behavior plan taking into consideration the elements of Ms. Belgrade's plan. PARENT 9-86. Vic Morris did not discuss this plan with Alice Belgrade. (R7764) Alice Belgrade testified that she believed that the panel should have had a meeting where they sat down with documents and together wrote up a final behavior plan. Alice Belgrade did not like the plan because she

found it difficult to follow and believed that it would be difficult for others to follow. Also, Alice believed that Vic's plan had a heavy reliance on "precursory behaviors". In Alice's work with the student at home, she found no significant correlation between precursory behaviors and the occurrence of targeted behaviors. (R7772-7773) Rather, Alice focused on the environment as an antecedent of future behavior. Nonetheless Ms. Belgrade testified that she believed the plan could address the student's behavioral needs and could be implemented appropriately by the Conant High School staff.

According to Vic Morris, the Panel believed that staff development was an

important ingredient for the student's return to Conant. The panel agreed that it was necessary and important for the staff to receive some training because although some of the strategies being recommended might not have been new to them, the comprehensive approach that was being recommended was new given the panel's review of the student's record. (R2515-2516) The initial recommendation was for two full days of training to cover various topics e.g. functional assessment of behavior, the specific strategies to use with the student in response to the targeted behavior i.e. behavioral intervention strategies, an overview of the characteristics of Rett Syndrome in general and the student in particular, communication strategies and strategies for peer support. In Vic Morris's opinion, failure to provide the student with a method of communication might trigger targeted behavior or contribute to the targeted behavior. And thus, it was important for the school to provide consistent access to the student's various means of communication across settings at all times (2353). It was clear during his testimony that Vic Morris used the pronoun "we" to mean "the panel" based on his conclusion that in the absence of overt opposition from the other panel members, the "we" did mean "the panel".

Based upon his schedule, Vic Morris established March 19, 2003 and March 31,

2003 as the training dates. Vic Morris prepared the agendas for both training dates. On March 19, 2003, Alice Belgrade provided an overview to assigning meaning to behavior. The mother of the student then provided an overview of Rett Syndrome. In the afternoon, the training was focused on compiling baseline data i.e. the fundamentals of data collection. Alice Belgrade facilitated the afternoon session and at first focused on assigning meaning to behavior. The goal of that session was to specifically provide information about isolation of antecedent behavior, data collection protocols, observing and defining behavior i.e. helping the staff to understand the importance of operationally defining specific behaviors for future data collection and analysis. The remainder of the training focused on the functional assessment flowchart which was essentially a summary of a functional analysis protocol. Then the presentation focused on reactive strategy planning during which one identifies specific responses to targeted behaviors consistent with proactive intervention strategies. (R2552-2553)

Based upon Vic Morris scheduling a second day of training on March 31, 2003,

the panel anticipated that the student would re-enter Conant around April 1, 2003. However, the second day of training had to be rescheduled because the school district staff was on "spring break" and Phyllis Duffie, one of the presenters on assistive technology was on another "spring break" schedule. (R2679)Vic Morris testified that the panel did not believe that the student should return to Conant High School in the absence

of both days of training. (R2244) At the second day of training, the staff was presented with a flowchart as a model for assessing and addressing the student's problem behaviors (vocalizations, head butting, hitting) e.g. setting events, antecedent behavior, precursory behavior, desired behavior, problem behavior, alternative replacement behaviors, maintaining consequences, proactive strategies to minimize or reduce the likelihood or the occurrence of problem behaviors and reactive strategies to define specific responses if those behaviors occurred. The flowchart was developed based upon information from staff that had worked with the student during her freshman year, information from Alice Belgrade in her work with the student in her home, Vic Morris's observation of the student in her home, and comments from staff currently working with The student.

Vic Morris met with the staff supporting the student. He observed the work room

and detected no foul smells or mold on the walls or leaking from the ceiling. Vic Morris discussed the student's schedule. Vic Morris and his associate, Mark Lenz, recommended that the student participate in three periods starting with the 2nd period. The student would have one academic class (English), Physical Education and Lunch. Vic Morris recalled that he discussed this schedule with Alice Belgrade and Bennett Leventhal and they voiced no opposition. (R2233) Alice Belgrade recalled that she "assumed" that the panel would develop criteria for behavior which would lead to an expanded day for the student. However, Ms. Belgrade also recalled that this area was never discussed thereafter. The focus of the panel quickly shifted to behavior assessment/planning and writing a behavior plan by three panel members who seldom could schedule time together. (R7732)

The panel made no modifications to the student's IEP once she returned to Conant

High School in the Spring, 2003. Jennifer Pearson testified that she attempted to arrange for an occupational

therapist to perform a sensory integration evaluation as required by the settlement agreement. The August, 2002 IEP called for 200 minutes per month of OT services in a combination of direct and consult minutes. There was a change in the OT provider and then there was an attempt to secure the sensory integration evaluation. The evaluation was completed in June 2003. Ms. Pearson testified that the school district had an OT provider reach to provide the service minutes but the parents of the student would not sign a consent for that service provider. (R3803) The August 2002 IEP contained no goals for occupational therapy.

4. SPRING 2003 - CONANT HIGH SCHOOL ("the thirty-five days")

Jean Mansfield n/k/a Jean Mansfield Link was employed by the school district

in December, 2002 to act as the student's special education teacher. Ms. Link had received her undergraduate degree that month and was certified as an LBS-1 (learning behavior specialist). Her student teaching experiences consisted of teaching in high school multiple disabilities classroom, students with physical disabilities, wheelchairs as well as cognitive disabilities at Kirk School (Fall Semester, 2002). Ms. Link had an early clinical experience at Kirk School with intermediate level severe to profound students

and autistic children. She had no prior experience implementing a behavior intervention plan prepared for a specific student. (R5383) Ms. Link knew the student from a prior experience in August 2000 where she was assigned to her as an aide during a swimming class through the Northwest Special Recreation District. She recalled that she would talk to the student by asking questions, then her mom would determine the student's response, using yes/no cards. Jennifer Pearson recalled that the school district was looking for someone who had experience working with students with disabilities, with low-incidence disabilities, someone who had experience with assistive technology, was organized, had experienced in behavior data collection and someone who was good working in a team and saw themselves as collaborative. Apparently Jennifer Pearson believed that Jean Mansfield Link "fit the bill". (R2425-2426)

On 23 December 2002, Ms. Link visited the student's home, observed the use of

yes/no cards and other note cards that had things like: I need a break, need to use the bathroom, I'm hungry, etc. - the cards were laid out in front of the student and after having her hands separated, she would point to the cards-sometimes her mom or Alice Belgrade would physically assist her.

She recalled that the student used a Macaw too (device with 6 cells that you could

record things that the student could "say" by pressing one of the cells. On cross examination, Ms. Link testified that they played the game "Guess Who", a game that is not usually played by a typical 16-1/2 year old but that Ms. Link has used the game with other high school students who had multiple severe disabilities, including some who were cognitively mental impaired (R5768)

On January 23, 2003, Ms. Link again visited the student's home. Mark Lenz and

Alice Belgrade were also present. She observed the student working with Alice Belgrade on a geometry assignment created by her father. She observed that the student got up a couple of times and her mom told her that she needed to finish her work first. Ms. Link recalled that the student appeared confused because usually when Alice Belgrade appeared, she and Ms. Belgrade played games. Ms. Link recalled that once it was explained to the student that she needed to complete her "homework", she complied and sat down. (R5431) Ms. Link visited the home again on March 7, 2003 and March 10, 2003. She observed yes/no cards, the Macaw and IntelliPics. She recalled that the student communicated that she was hungry by vocalizing. (R5450)

Ms. Link testified that if the student became upset, her mom would try to figure out what was making her upset and she would ask various questions relating to her physical needs trying to identify what was causing her to be upset. She recalled that there were times when the student was really upset and beyond that point, she recalled that it was very hard to get an answer from the student (R5463). On one of the home visits she observed the student head butt her mother when her mother insisted that she keep working on something.

Ms. Link visited the home again on March 11, 2003 and April 1, 2003 and

believed that she had been adequately trained by Alice Belgrade. (R5474) The home

visits continued on April 1, 2, 3, and 4, 2003. During the April 4, 2003 visit, the student used a TechTalk (8 cells as opposed to Macaw which had 6 cells), worked on an English assignment which Ms. Link had created as a worksheet with questions and a choice between two answers. Ms. Link testified that it seemed that the student understood the questions with two choices because she would typically choose the correct response. Ms. Link recalled that she tried to increase the number of choices later on but mostly the student had two choices. (R5507)

Ms. Link recalled that she attended a workshop on using augmentative

communication provided by Infinitec prior to the student returning to Conant High School and recalled the training on the behavior plan by the panel. She was asked if she received support, supervision or guidance about strategies to assist the student's involvement in the classes and the curriculum. Ms. Link's response at the hearing focused on team meetings where the team discussed what to do if the student did not behave appropriately. (R5511-5512)

Once the student returned to Conant High School, the panel continued

"monitoring the data that was provided by school personnel specific to issues of concern for her participation, most notably her physical behaviors either self-directed or other directed blows" (R2244, 7081) The panel was also monitoring the data that was being collected by Alice Belgrade.

Essentially, Alice and I reviewed the data as it was presented by the school staff looking for particular areas of success or concern relative to interventions that the panel had reviewed with the staff that worked with The student. And we were available for problem solving consultation that would be directed by the staff. (Vic Morris, R2247) In addition to reviewing data, some members of the panel participated in some

team planning meetings and information meetings to review the student's progress and to consult with the team about future program development. At one of the team meetings, the participants discussed the assistive technology evaluation conducted by Kathleen Post.

Q. To your knowledge, was there any IEP team convened for the purpose of considering Kathleen's recommendations and incorporating them as appropriate into the IEP? A. No. There was a team meeting I believe in which this assessment report was reviewed. (Vic Morris, R2357) Vic Morris had the general impression that the direct line staff working with the

student in Spring 2003 did a nice job in supporting her needs, having developed a good understanding of how to work with her before she returned to Conant. (R4213) Further, Vic Morris had the impression through analysis of the data that the behavior strategies were successful for The student (R2388-2389) Vic Morris testified that the amount of time that the student actually spent in the regular education classroom would be a good

indicator as to whether the student was having a successful experience upon her return to Conant High School (R2514)

During his work on the panel, Dr. Leventhal recalled that he reviewed data and

various communications and recalled that there were some questions about the persistence of the behaviors, the physical behaviors, self-abusive and aggressive behaviors toward others and then the vocalizations which were a serious problem as well. (R3937-3938)

There was some concern about questions about how much time she spent in the regular classroom and how much she spent in her area. There are rooms that have been put together for her with her teachers away from the other kids. And how so-called good day and not so good days and how many of each there are. So we tried to get some sense of what was the predominance of her activities and how it was playing out and what she might actually be learning. (Leventhal R3938) During the Spring, 2003, Vic Morris had a growing impression that the staff felt

that they were not able to do anything or make any decisions concerning the student's program unless the decision came from the panel. Vic Morris arrived at the impression because of the fairly consistent questions and requests for information which came from the team via Jennifer Pearson. (4429) Vic Morris did not believe that it was desirable for the panel to serve in the role of approving all strategies, interventions and training for the staff to work with The student. (4236-4237)

From January 2003 through May 2003, Bennett Leventhal reviewed the data

regarding vocalizations and discussed this information mostly with Vic Morris, occasionally with Alice Belgrade.

And there were continuing concerns about the vocalizations in particular, because they were quite loud and disruptive, but other kinds of behaviors as well. They waxed and waned a bit. And the question was whether the interventions themselves were making a difference. So it was over that time frame we had those discussions. (Leventhal R3939) Once the student returned to Conant High School, Ms. Link testified that it was

very difficult to assess the student academically because the time dedicated for academic use was often occupied by dealing with her behaviors (R5794) She recalled that she was able to continue working with the student when she presented with agitated or problematic behavior, "at times" (R5465) She attempted to continue working because they did "not want self-injurious behavior, vocalization to be a means of escape from a task" (R5466) The student used her IntelliKeys and Tech Talk at school. The student used her SuperHawk or her TechTalk (electronic communication systems) plus her low-tech boards plus a home-school communication notebook. Ms. Link created a data sheet that had the reactive plan on it broken down into little steps and she marked if the student had a behavior and kept marking on the sheet as to which level she was at. She recalled

that the team had identified some behaviors that they felt were precursors to negative behavior and as she witnessed them, she would mark them off on the data sheet. The student was scheduled to attend one academic class, English, from 10:05 a.m.-10:55 a.m. and, when focusing on Ms. Link's data, of the 35 days that the student attended Conant in the Spring 2003, there were only two of those 35 days that the student stayed in the English class for the full fifty minutes.

April 21-25, 2003. The student attended the first three days and was absent the

last two days. She did not attend PE on the first two days because the team wanted the student to start gradually, attending her academic class first. Ms. Link testified that during that week there were very few negative behaviors (R5783) The daily logs reflected the following:

• DAILY LOG 15-1 (Monday:4-21-03) - 10:10-10:25 vocalizing loudly, took for a

walk, returned to class at 10:35, left again at 10:45 because vocalizing loudly, standing up - returned to workroom, explained unfinished work to be done as homework - 15 minutes in English

• DAILY LOG 15-3 (Tuesday: 4-22-03) - stayed "entire class" because was redirected when she had short vocalizations and standing up episodes - 50 minutes in English

• DAILY LOG 15-4 (Wednesday: 4-23-03) - class taking a quiz, the student would not stop vocalizing even when threatened with removal to take quiz in workroom so removed the student from the class - 10 minutes in English April 28-May 2, 2003. Ms. Link testified that the student spent no time

in English due to "behaviors" (R5784) and left early on Monday and Friday. The daily logs reflected the following:

• Monday 4-28-03 - attended 1/2 day, left ill per Weekly Summary (15-27) 0

minutes in English - sick, left early "did not or did not go, tired/not feeling well" (5883)

• DAILY LOG 15-13 (Tuesday 4-29-03); DAILY LOG 15-16 COMPETING BEHAVIOR PATHS DATA SHEET - record problem behavior on 4-29-03, the replacement behavior offered and what happened then (gave her "break" from Donna and Donna went to the nurse because the student had hit Donna on her head with her forearm); DAILY LOG (Tuesday 4-29-03) - did not attend English due to noise level.

• DAILY LOG 15-17 (Wednesday, 4-30-03) - did not attend English at all "due to agitated/upset behavior" - 0 minutes in English, ate lunch in the workroom for same reason

• Ms. Link testified that there were occasions when she would need to provide physical pressure on the student's back to get her to walk from class to class if she did not want to or did not feel like going to class (R5552)

• DAILY LOG 15-21 (Thursday 5-1-03) - did not attend English, other kids giving their "Hero" speeches, worked on her speech in the workroom, many loud

vocalizations noted, excited about giving speech about Julia Roberts 0 minutes in English

• DAILY LOG 15-23 (Friday 5-2-03) - in workroom working on speech 0 minutes in English At this point, the student had been in school for two weeks, missed 2 days of

school at the end of the first week, left early on the first day of the second week and did not attend English at all the 2nd week apparently because she was working either on her Hero speech or exhibited agitated behavior on 4-29-03 and 4-30-03

May 5-7, 2003. The student attended class Monday thru Wednesday. She

attended English two of the three days, one for 35 minutes and one for 40 minutes. The daily logs reflect the following:

• Daily Log 15-29 (Monday May 5, 2003): gave her speech in English and then

exited the classroom- 35 minutes in English Scott Altergott's testimony as to what happened on that day is as follows:

So The student was standing at the desk and the projected image was on her as well as on the screen... The first button or first selection that The student made was not the first one on the slide I think is -- yeah. And so an image came up, and it was the wrong one. So they tried to reset. And then when she pressed the right one, if I remember correctly, there was an image of Julia Roberts that came up on the screen. The student looked at Julia's picture. I don't know if she recognized her or whatnot. The student became excited, vocalizing and started jumping and actually left the area behind the desk and went off into the classroom…Jean had to go get the student and brought her back…I don't think -- if I remember correctly, I don't think they made it through the entire presentation. But we did get to see a few more slides. And there was at least one other occasion where The student got excited again, was vocalizing and walked away -- or jumped and then walked away from the presentation. And at a certain point I think we turned on the lights and decided that, you know, we wouldn't try to go back to the beginning and go through the whole presentation again. (Altergott Testimony R798-800)

• DAILY LOG 15-31 (Tuesday 5-6-03) - listened to teacher lecture on summer reading and discussed upcoming unit on Julius Caesar - 40 minutes in English

• DAILY LOG 15-36 Wednesday 5-7-03) - did not attend English due to behavior and bathroom needs - 0 minutes in English.

May 8-13, 2003. The student did not attend English on 5-8-03, attended

English for 20 minutes on 5-9-03, attended English one minute on 5-12-03, and twenty-five minutes on Tuesday. The available daily logs reflect the following:

• DAILY LOG 15-40 (Thursday 5-8-03) - 0 minutes in English due to distress/possible pain

• Friday 5-9-03 - 20 minutes in English • Monday 5-12-03 - 1 minute in English • DAILY LOG 15-54 (Tuesday 5-13-03) got there on time, left after 25 minutes

due to loud vocalizations - 25 minutes in English May 15-21, 2003 The student attends English 30 minutes on Tuesday, no

minutes on Friday, 45 minutes on Monday and 10 minutes on Tuesday. There was a fire alarm on Wednesday during English so no minutes in English. The available daily logs reflect the following:

• DAILY LOG 15-67 (Friday 5-16-03) - vocalizing so did not attend English 0

minutes in English due to vocalizing so worked in workroom, read 2 acts of Julius Caesar to the student, Ms. Mansfield noted that the student was missing large parts due to early departure from class May 22-28, 2003 The student spends 35 minutes in English on Thursday, 30

minutes on Friday, 40 minutes on Tuesday and 20 minutes on Wednesday. There was no school on Monday, 5-26-03. Available daily logs reflect the following:

• DAILY LOG 15-87 -(Friday 5-23-03) - 30 minutes in English: stood up, wanted to leave so returned to workroom May 29-June 3, 2003 WEEKLY SUMMARY 5-29-03 THRU 6-3-03: no

minutes in English June 4-10, 2003 WEEKLY SUMMARY 6-4-03 THRU 6-10-03 (LSD Exhibit

14) - no time in English except 5 minutes on Wednesday 6-4-03. Daily logs reflect the following:

• DAILY LOG 15-113 (Wednesday 6-4-03) - only 5 minutes in English because

class in computer lab so they returned to workroom to work on the "create a newspaper" assignment by "discussing it and we looked for pictures of Roman people on-line" (5578), the workroom had materials adapted for her and had a touch window for the computer, her Intellikeys keyboard, more material available for the student (R5613) - 5 minutes in English

• DAILY LOG 15-117 (Thursday 6-5-03) - 0 minutes in English, worked in workroom on workroom computer on the newspaper assignment

• DAILY LOG 15-120 (Monday 6-9-03)- 0 minutes in English, did not attend class because class reviewing material presented prior to April 21, 2003, worked on t-shirt for Alison, the student participated by answering yes/no questions as to what she wanted on the t-shirt

• DAILY LOG 15-121 (Tuesday 6-10--03) 0 minutes in English, did not attend again because reviewing material for Final

June 11-13, 2003 WEEKLY SUMMARY 6-11-03 THRU 6-13-03 FINALS WEEK (LSD Exhibit 15)

• • DAILY LOG 15-128 (Wednesday 6-11-03) 0 minutes in English • DAILY LOG 15-130 (Thursday 6-12-03) Ms. Link testified that the parents and

she and agreed not to tell the student that she was not returning to Conant so that the news would not affect her ability to take her English test " or to cause her to have any other behavior issues" (R5584)

• DAILY LOG 15-132 and 15-132a (Friday 6-13-03) - English Final (19-1) - three choices, 5 topics, 30 questions, developed by Ms. Link based upon the questions in the study guide given to the other students (R5615). The student took the final in her workroom because Ms. Link needed to read the questions to the student.

• The other students needed quiet, the student needed someone to help her with her final exam (R5614), Ms. Link read the questions, the student's aid provided some physical assistance but Ms. Link recalled that the student independently answered most questions (R5616). Ms. Link recalled that she covered the other questions when they were asking the student, so that there were only three options available for her to point at (R5635) The student got 21 out of 30 correct. Jean Link testified that there was a definite relationship between the effectiveness

or ineffectiveness of the student's ability to communicate and the behaviors which may have followed. "The student would become frustrated as any of us would when somebody wasn't understanding what she wanted or what she was trying to say...and there were times when we weren't getting it. We didn't understand what she was telling us. And she would get frustrated, and that would result in behavior" and then there were times when Ms. Link would finally figure what the student was trying to say and then "she would vocalize and jump up and get excited when we did figure out what she was trying to tell us" (R5623)

Jean Link testified that in her opinion the students would be startled and

uncomfortable when the student would vocalize in English class (it was a quiet environment and, you know, she could vocalize pretty loudly R5655) but they would "usually" continue on with their work. Ms. Link testified that the student's vocalizations played a big role in her ability to remain in her English class. If the student was vocalizing very loudly, she, obviously, could not keep the student in the room because it was disruptive to what was going on with all the other students (R5799) Juxtapose this testimony with the testimony of the English teacher, Scott Altergott, when he recalled that during the spring semester the student had been "restrained" in his classroom - the special education teacher had to hold on to her arms because the student was either hitting herself or jumping up and down and swinging her arms or hitting herself. (R901-902) The disruptive nature of the student's attendance in the English class can not be ignored.

Jean Link testified that she went to the nurse's office when the student head butted

her on her collar bone. The nurse reported four instances when the staff working with the student reported to her or involved the nurse in Spring 2003 - the collar bone incident, the

incident when the student head butted Ms. Link, and the instance when the student head butted her aide's face a couple of times.

Jean Link recalled that the student struggled when she first returned to class

because the class was reading Julius Caesar. Ms. Link testified that Julius Caesar is difficult for most high school students, not just the student. She recalled that with the other material, the material that was a little more direct, she could read the story to the student and ask her questions that were specifically about the content of that story. The student did much better with this arrangement. (R5634-5635) Ms. Link agreed that most of the student's English academic instruction occurred in the self-contained workroom. (R5792) Most of her IEP goals were attempted in the work room because it was hard to do in the classroom without being disruptive. (R5812) Ms. Link also testified that it was very difficult to assess the student academically as the time dedicated for academic use was often occupied by dealing with her behaviors. Further, Ms. Link testified that it was difficult to assess the student because it was hard to tell at times which choice she was really making, where she really meant to point vs. where she actually did point. There were times when the student seemed to respond with ease and there were other times where it took more physical assistance to get a response. (R6811-5812) Ms. Link also testified that the student would vocalize when she would feel distracted or over stimulated by sound and thus the work room, which was quieter, was a place where the student could focus more on her academic progress. (R5813).

Ms. Link created a summary of the student's "accomplishments" during the spring

2003. She wanted to be really positive and recite the student's strengths. Trudy Lane, the Conant High School Special Education Chair, and Felicia Delgado, the Conant High School psychologist, were looking for more data to back-up what she was saying in her report. Ms. Link believed that her summary would be used in the "student strengths" section of the IEP. (R5663-5664) However, Ms. Link testified that Ms. Lane and Ms. Delgado were concerned that there was no data to support a statement that the student had demonstrated academic progress in a mainstream environment. (R5781) Following are direct quotes from the testimony of Jean Link regarding the student's thirty-five days at Conant High School:

"the majority of missed classes can be directly attributable to physical

needs" - some sort of pain, needed to use the rest room, she was hungry, just physical issues that we determined from asking her questions (R5668)

they used "positive feedback" in the classroom based on her observation of

how Alice Belgrade worked with the student. The "positive feedback" was snacks but "alot of times the student was then distracted by food...we were hesitant to use it too much because it seemed like she was just focused on the food" (5673)

the majority of the teacher's contact with the student has been social - had

been of a social nature - this is largely due to the fact that most of student's instruction was provided directly by her inclusion facilitator as well as her

dedicated classroom teaching assistant - Donna and I provided most of her instruction (R5679) There was a plan for the student to have actual interaction with her English teacher on a daily basis by having the teacher ask her a question at some point during the class that had been preplanned with a preplanned response. But that did not work out because sometimes the teacher wasn't ready to ask the question that he had prepared for the student, if the discussion had gone longer or if the student had to leave, and sometimes the student was not present for the planned interaction. (R5682)

"although the student has spent a minimal amount of time in the school

environment, 35 days total, she has responded positively to her shortened schedule and individualized program of instruction" means "in the amount of time that I had to observe her, I think she did very well" (R5684) However, Ms. Link also recalled that when she worked with the student in her home, they were able to do alot more academic work. (R5684-5685) The main difference for the differentiation in the academic progress that the student was able to free to set her own schedule ...at home schedules were more flexible than in a mainstream school. (R5793)

"The student has a great of deal of physical needs as well as difficulty with

blocked communication. She has made a phenomenal effort to overcome these obstacles utilizing the support offered to her" - she tried very hard. But if the student was frustrated "...she would get to a point where she was upset or angry because we didn't understand her or weren't getting the message that she was trying to give us. And sometimes she would - frequently, it was self-injurious behavior, she would hit herself, get upset. That was her way of communicating she was upset or frustrated with us" (R5693-5694) Counsel for the parents asked Ms. Link if she would have added anything

to the student "strengths" section of the August 2003 IEP. Ms. Link responded that she would have inserted a statement that she tried to get the student to class as much as possible. Prior to her exit from the school district, Ms. Link completed a report dated June 13, 2003 about the student's progress on her August, 2002 IEP goals:

1. The student will semi-independently improve understanding of "who" questions. According to Ms. Link, the student has "demonstrated the ability to respond quite accurately in the academic setting. The student is approximately 90% accurate with her responses in a social setting when she is calm and all of her physical needs have been addressed. The 90% declines significantly when the student is agitated. 2. The student will develop proper hygiene for lunch and toileting. According to Ms. Link, the student can wash her hands with soap and water with maximum assistance. The student needs hand-over-hand assistance to complete all steps with the exception of removing the

paper towels from the dispenser. Ms. Link reported that the student requires verbal and physical prompts. The objectives did not specify how much assistance so Ms. Link indicated the student needed "maximum" assistance and then with that, she met those goals. 3. The student will respond to a personal greeting. Ms. Link qualifies her statement that the student has met this goal by stating that the "majority of missed attempts do occur when the student is agitated or distracted by physical needs" 4. The student will demonstrate the ability match objects/pictures. Ms. Link clearly states that the student met this goal with and without physical assistance. 5. The student will improve her sorting skills. Ms. Link clearly states that the student met this goal with and without physical assistance. 6. The student will improve functional self-care for more independence in the school as seen by using spoon with moderate assistance for feeding. Ms. Link clearly states that the student met this goal with and without physical assistance. 7. PT Goal: The student will demonstrate the ability to transition from one position to another for functioning within the school environment. 8. Speech Goal: The student will demonstrate 4 communication skills 9. The student will be able to function safely in the school building - need to develop after "functional analysis" 10. AT Goal: With assistance and the use of no tech, low tech and high tech, the student will share home happenings with others. 11. The student will demonstrate sustained attention to tasks individual then group focused activities (requiring minimal fine motor coordination. According to Ms. Link, The student met all of the objectives in an individual setting but not in a group setting. (R5721) After completing her testimony as to the student's "progress on goals", Ms. Link

stated that in her opinion, the student had "benefited" from her time at Conant High School; that the student had developed skills that were either less developed or not present when she returned to Conant in spring 2003, and, in Jean's opinion, the student was capable of taking on more challenging objectives for the coming year. (R5721-5722) Ms. Link testified that she understood Trudy Lane's concern and Felicia Delgado's concern that there was no data to support a statement that the student had received

"academic benefit" or had "academic progress" in a mainstream environment (R5781) Ms. Link also testified that when she was evaluating the student's progress on her IEP goals, she did not consider those days when the student exhibited negative behaviors. Ms. Link testified that the student was not able to do many things when she was in the course of having a bad day.

I mean, certainly, she had behavior issues. I mean, I am not going to discount that she didn't have bad days. But most of the data that was taken as far as, you know, if the student was able to scoop, if she was able to answer questions, those kinds of things were on days where she was having good days. So I guess if that is slanting it in a positive direction, then I guess that is what I did. (Jean Mansfield Link R5733-5734)

5. SUMMER 2003 By June, 2003, Bennett Leventhal concluded that the behavior interventions were

not working. Well, I think it was early on in the early months of January, February and March, it was difficult to determine whether the interventions were making a difference. There was some staff training done at the time. And there were some behavioral interventions done. And it was difficult to tell because there were periods when things seemed to be reasonably quiet and other times when things were pretty disruptive. I think it is hard to make a decision based on 20 days or 30 days of activities. So we really wanted enough time to get enough sense of that. But I think later in the school year it became quite clear that the interventions weren't really having the impact that we had hoped they were going to have. (Leventhal R3940-3941) In June, 2003, Jean Mansfield Link completed a questionnaire for an occupational

therapy evaluation by Kids Pediatric O.T. on June 13, 2003 (Parents 1-5) Under the section entitled "adaptability" Ms. Link reported that the student could not focus on task, was distractible, especially if food was involved. Ms. Belgrade interpreted this to mean that when the student is hungry she is distractible. (R8719) In June, 2003, Ms. Link reported that she had difficulty assessing the student's capacity in the areas of reading, remembering information and mathematics due to the student being nonverbal and having apraxia. Ms. Belgrade testified at the hearing that she agrees that it is difficult to assess the student. In June 2003 Ms. Link reported that at times the student appeared very focused and on task and at other times she was not focused and not on task. Ms. Belgrade agreed with this assessment and testified that the student has definite activity preferences and those do affect her behavior. (R8724) In June 2003 Ms. Link reported that the student had difficulty with changes in routine and mood variations. Ms. Belgrade agreed with this assessment. Ms. Link testified that there were times where the student would act out or would have a negative behavior where Ms. Link did not see any precursors, where it just seemed to be out of nowhere (R5808-5809) In June 2003 Ms.

Link reported that the student had frequent temper tantrums/outbursts. Ms. Belgrade agreed that the student had frequent outbursts but declined to characterize them as "temper tantrums". Ms. Link testified that if the student was frustrated or angry, she would vocalize very loudly. The student would scream out or would hit herself or would attempt to head butt other people...she definitely had what I would call tantrums or outbursts (R5746-5747)

Bennett Leventhal, Alice Belgrade and Vic Morris participated in a conference

call on June 2, 2003. Bennett Leventhal recalled that he participated in the discussions relating to the creation of a report, to be largely authored by Vic Morris, which would provide the parties with the panel's thinking.

So the discussion we had on the conference call was we agreed -- the three of us agreed that the continuing behavioral disruptions, in particular the vocalizations, were of sufficient severity, if they persisted, that she couldn't stay at Conant; that it was not in her best interests and it wasn't certainly in the interests of the students at Conant; and, furthermore, that if we couldn't get those behaviors under control, that she would probably need to be in a self-contained setting in order to provide the intensity of services that were necessary. (Leventhal R3944) By June 2, 2003, the panel was interested in setting a date to discuss a way to end

the panel. By that time it had become clear to Vic Morris and to other members of the panel that the process was complicated and time consuming and there were probably better ways to support the student's needs. Some members of the panel wanted to gather information about educational placement options within the school district and in fact observed the Kirk placement. The panel also had become aware of the self-contained special education classroom at Hoffman Estate High School. The panel was going to pursue this investigation of other program options within the school district until they had a conversation with counsel for the school district and for the family. Thereafter, the panel concluded that this investigation of other program activity was not an appropriate activity for the panel as it was not within the purview of the panel responsibilities as set forth in the Settlement Agreement. (R4260-4262)

There had been no specific discussions with the panel about what the student

would be doing during the summer 2003 (R2252) In Vic Morris's opinion, the panel should not be involved in the student's summer activities beyond reviewing data. Jennifer Pearson, on the other hand, seemed to believe that she needed to secure the panel's recommendation for "extended school year". (R2498) Vic Morris recalled a conversation with Jennifer Pearson on the subject in early July. Jennifer asked for a recommendation or suggestion about a summer program for the student. They discussed a district summer school program and a community based recreational program. Notwithstanding Vic Morris's belief that the panel should not be involved in summer programming for the student, Vic Morris provided his opinion that the student should be engaged in an extended school year component, particularly the continuation of the vocalization shaping protocol that had been initiated by Alice Belgrade (R2256) In the

absence of the continuation of the vocalization shaping protocol during the summer, Vic Morris was of the opinion that there would be an adverse effect on the student's education. Jennifer Pearson recalled that the IEP team discussed summer school options with the student's parents but the parents talked about the student again attending summer camp where the student would have more social opportunities. (R2483) Jennifer Pearson also recalled that the team discussed placing a school district employee with the student in her recreational program. However, she recalled that the final outcome was that the focus of the student's summer activities would be the shaping protocol for vocalizations established by Alice Belgrade (R2446)

Bennett Leventhal recalled that the panel agreed that an intensive behavioral

intervention focused on the student's disruptive vocalizations in her English should be tried over the summer. Both he and Vic Morris were dubious that it would be successful. Further, Bennett Leventhal believed that the panel believed that if the summer intervention was not successful, that The student's placement should be changed to a self-contained setting. Consequently both panel members were baffled when Alice Belgrade subsequently recommended at the August 2003 IEP meeting that the student's time at Conant High School be increased.

A. I thought we had had a full and open airing on the topic and we arrived at a consensus about what the strategy would be. And then it changed. Q. To your knowledge, did Vic express to you whether or not he was surprised at that change? A. I don't recall whether he said he was surprised. I think we were both a little bit baffled. (Leventhal R3946-3947) Alice Belgrade prepared a summary of the June 2, 2003 telephone conference and

Bennett Leventhal was surprised by its content. He recalled the panel had reached a consensus that the student's placement at Conant was not working and her placement should be changed to a self-contained classroom. Consequently he was surprised that ultimately the panel was unable to reach consensus about the student's placement in the "report" described below.

Q.....So the surprise that you were describing wasn't a surprise that had occurred immediately prior to the issuance of the consultation report, but rather a surprise that what you read in her E-mail was different than what you had understood from the conversation; is that right? A.....Well, my surprise is that we ultimately got to a point where we couldn't reach a consensus on the issue. Because we had relatively quickly come to a consensus on the issue in our telephone conversation on June 2nd. But over the course of the intervening weeks, by the time the report was issued, we were no longer able to achieve a consensus on that point. As you can see, there are many things which we do reach a consensus. (Leventhal R 4107-4108)

Vic Morris prepared a "report" in July 2003 which was presented at the August 7, 2003 IEP meeting. The document was intended to provide an update and clarification of several issues and concerns regarding the student's program from the perspective and consensus of the panel. There were nine points addressed within the document but there was never a clear and unambiguous statement from all panel members that they had read the document and agreed with every word contained therein. There was considerable dialogue back and forth within the panel about a final recommendation for placement but there was never a consensus reached. (R4272) The panel never reached any consensus about what would happen in the Fall, 2003. The panel was in no position to recommend anything other than Conant because they had been advised that it was not within their job description to investigate any placement other than Conant. At the time that Vic Morris prepared the document, he believed that teaching the student to exert some control, particularly to delay intense vocalizations, self-inflicted behavior/head butts would be pivotal in increasing her inclusion into school. (R4857) The "report" did not contain any specific panel recommendation about the number of classes that the student would attend in the Fall, 2003. (R2263).

After the July 2003 report, Bennett Leventhal had no further contact with the

panel of any substance except that he knew that Vic Morris had decided that he no longer wished to participate in the panel. He believed that Vic Morris withdrew because, in general, the panel did not seem to be going anywhere. Bennett Leventhal was of the opinion in July 2003 and again in November 2003 that the student's continued placement at Conant was inappropriate because he believed that the student had fairly significant difficulties managing her behaviors and in acquiring skills and in particular the acquisition of language skills. In Dr. Leventhal's experience, the best way and perhaps the only way to provide the kind of skills that this student needed was a very intensive intervention setting that was highly structured with a large group of people who are experienced in working with a student as complex as this student. In addition, Bennett Leventhal believed (a) that the academic expectations of the regular education classroom were beyond the student's intellectual capacity and (b) the student did not seem to have certain basic adaptive skills that he believed the student could acquire. In Bennett Leventhal's opinion, he is not surprised by the student's negative behavior because he believes that the student is frustrated and does know quite what to do. In the opinion of Bennett Leventhal, valuable time has been wasted in the ability to develop the student's potential by continuing to place her at Conant High School. (R3958-3960)

Alice Belgrade worked with the student over the summer of 2003. She testified

that the student's vocalizations in English class "could be" disruptive. Alice Belgrade is of the opinion that the student uses vocalizations to alert people that she wants to communicate and in those instances the vocalizations are volitional and can be shaped. In working with the student at home that summer, under controlled conditions, Alice testified that the student was largely able to suppress vocalizations under a command to do so for a set period of time - about a minute and a half! (R8769)

6. AUGUST 2003 IEP MEETINGS

At the inception of the panel in December, 2002, Vic Morris recalled that there had been persistent and ongoing challenges in coordinating schedules among panel members. Vic Morris found that those challenges were so severe that it became difficult for the panel to have telephone conferences together, let alone face-to-face meetings. The panel members had busy schedules and full calendars but Vic Morris could not blame any one particular panel member as they were all involved in the process. In Vic Morris's opinion, these scheduling difficulties frustrated the work of the panel as far as accomplishing the goals identified at the first and only face-to-face meeting of the panel. (R2242) At the August 7, 2003 IEP meeting, Vic Morris announced that he was effectively withdrawing from participation in the panel because he was concerned about the continuing effectiveness of the panel. In his testimony Vic Morris stated that his decision to withdraw from the panel was a culmination of a number of factors, most significantly collaboration between panel members was exceptionally difficult to coordinate and to effect, so that the panel members were spending huge amounts of time trying to have relatively simple discussions or conversations about programming. And it was apparent to Vic Morris in the IEP meeting that there were differences in perspective between himself and Alice Belgrade about how to approach and best support the student. (R2266). There was no provision in the Settlement Agreement for the withdrawal of a panel member. From all appearances, the parties continued to function as if nothing had changed.

It is clear from his testimony that Vic Morris was of the opinion at the August 7,

2003 IEP meeting that the student was participating successfully at Conant High School, that she was receiving benefit from her participation, that the benefit included a social and behavioral benefit, the ability to develop communication skills in relation to peers and adults, deriving benefit in terms of her ability to develop skills in relation to access to the curriculum, and that she was making progress in accomplishing her goals and objectives. Vic Morris was of the opinion that there was no reason to suggest that the student be transferred to another setting due to her experience and progress to date. (R4309-4310) It is equally clear that Bennett Leventhal did not share this opinion and that the actual experience of the classroom teacher, Jean Mansfield Link, was completely at odds with Vic Morris' belief. Jennifer Pearson recalled that there was no discussion of goals at the August 7, 2003 IEP meeting. After the meeting adjourned, Ms. Pearson recalled that counsel for the parents sent a list of goals and objectives which they wished incorporated into the IEP. She believed that the IEP team took those recommendations into consideration as they finalized the August 15, 2003 IEP.

At the August 15, 2003, the parties reviewed the student's progress on her 2002

IEP goals and objectives, developed new goals and objectives and then proceeded to discuss the student's placement. Jennifer Pearson also chaired and facilitated this meeting. Ms. Belgrade at first recommended that the student return to Conant High School on a full-time basis. The educational staff members then left to "caucus" about this recommendation. In Jennifer Pearson's mind, the parents, Alice Belgrade and their counsel were "caucusing" too. At the end of the private "caucuses" the school district members of the IEP team issued a written statement indicating that they would have ordinarily recommended that the student's placement be changed to a self-contained day

or residential program but felt constrained by the Settlement Agreement. The IEP team then acquiesced in the parent's demand that the student return to Conant High School and offered to provide the student with programming for six class periods for the fall, 2003. In Alice Belgrade's opinion, as expressed during the hearing, there was no reason preventing the student from attending school for a full day but not with a full load of classes. Rather, Ms. Belgrade believed that the student should enroll in approximately four academic classes.

During the IEP team, the team did not specifically suggest the multiple needs

program at Hoffman Estates High School because they believed that the student needed an intensive behavioral component to her program to work on her vocalizations, to work on her self-injurious behaviors, and her physical contacts with others. (R4376) At the hearing, Jennifer Pearson stated that she did not believe that the staff at Hoffman Estate High School had sufficient experience with students with severe behavior and communication needs. Rather, Ms. Pearson believed that the program operated by NDSEC at Lake Park High School contained the necessary behavioral components and the staff had more experience with lower incidence students with severe communication and behavioral needs. (R4377)

At the hearing, Ms. Link was asked her opinion as the student's special education

teacher on the student's continued placement at Conant High School. Ms. Link testified that although she believed that the student could go to Conant conditioned upon certain things i.e. addressing the student's need for flexibility i.e. the student needs people who are flexible to her needs and put her needs first. Ms. Link believed that the role of education for the student would be to teach her to be as independent as possible and that a functional curriculum has value for the student

At the hearing, Alice Belgrade was asked what she believed would be a "perfect

plan" for the student. Ms. Belgrade opined that she does not think that the number of minutes that the student actually spends in an academic class is an important consideration. In fact Ms. Belgrade believes that the student should spend as much time as she is able in a regular education class to absorb as much information as she is able. Ms. Belgrade was focused on the social interaction which takes place before class begins, in the hallway, after class in the cafeteria. In short, Ms. Belgrade believes that the issue of how many classes or how long the student is in the class is not the most important issue for her in terms of deciding where the student should be educated. From her perspective, the most important issue for the student is her connection and commonality with her peers. (R8955-8957)

Alice Belgrade was asked about the student standing up in a classroom and she

opined that maybe the student was listening while standing. Ms. Belgrade was then asked about the student's special education teacher's role in weighing or balancing out the needs of the class in terms of distraction and attentiveness if the student stood up in the classroom. Ms. Belgrade stated that she does not find the behavior disruptive. (R8948)

She believed that the student should attend school on a full time basis with four academic classes. Ms. Belgrade further believed that the four regular education teachers and the special education teacher should meet on a weekly basis, maybe even two or three times a week, with their lesson plans for the next week so that the special education teach would be aware of what was being covered in the four academic classes. Then the special education teacher would modify the materials for the four classes using a variety of visuals and graphic type organizers to highlight key information, possibly using outlines to key into the sequence that the regular education teacher was using. The special education teacher would modify the classroom materials so that the student could quickly get at the main concepts and also give the student a way to a question/answer format on a regular basis to make sure that the special education teacher could monitor the student's understanding of the material in the four academic classes on a daily basis. In the opinion of Ms. Belgrade, she would not provide the student with an alternate curriculum. She would simply have the special education teacher modify the regular curriculum in a format that is more accessible to the student, eliminating extraneous pieces of information, honing in on key main ideas. (R889-8896) Ms. Belgrade conceded at the hearing that she had not tested the student and thus the foregoing was a hypothesis of hers. (R8898)

7. FALL 2003 - CONANT HIGH SCHOOL ("the twenty-seven days")

The student was scheduled for six classes in the Fall: two academic classes - English and Earth Science, Foods, Physical Education, Lunch and a Resource Period. Jean Mansfield had resigned and the school district had not retained the student's 1:1 aide. The student had a new special education teacher (Bethany Powers) and 1:1 aide (Nora Mulcrone) with a 1:1 aide backup. Bethany Powers had been an inclusion teacher with the school district since July 2003 after completion of her undergraduate program in special education in February 2003. During the summer 2002 she had worked in a multiple needs self-contained classroom. Ms. Powers testified that she had had numerous field experiences from kindergarten through high school working with students with multiple disabilities including observations hours as well as actual experiences in the classroom. She testified that she had used assistive technology with special needs students, and was familiar with a variety of assistive technology devices e.g. SuperHawk, Intellikeys.

Bethany Powers testified that the school district indicated to her, during the

interview process, that she would be working with a student with Rett Syndrome. She testified that she then went home and did some preliminary research regarding Rett Syndrome. After she signed her employment contract, Ms. Powers read the Rett Syndrome Handbook and watched the Spring 2003 training tapes - Alice Belgrade, Phyllis Duffie, and Vic Morris/Mark Lenz. She also visited the student's work room to familiarize herself with previous work samples, software that had been utilized, assistive tech devices that had been utilized. She reviewed the student's IEP's, behavior logs and different data collection. Ms. Powers testified that she received a "refresher" course on AT from Phyllis Duffie a week or two into the school year and "refresher" course on the student's behavior intervention plan from Jennifer Pearson. She was advised that certain

precursory behaviors would signal a negative behavior. Ms. Powers testified that the student would not always exhibit a precursory behavior prior to engaging in a negative behavior. Ms. Powers testified that the student's augmentative communication devices were always available to the student.

Bethany Powers first met the student's parents at the 8-15-03 IEP meeting and

met the student in her home after the IEP meeting but prior to the start of the school year. She was invited to the student's home so that she could get to know the student and also so that the mother of the student could demonstrate how the student communicated, how she was toileted and how she ate. On that occasion, Ms. Powers was accompanied by Jennifer Pearson and Alice Belgrade was also present. On the second occasion Ms. Powers was accompanied by Stacey Rubin, the Northwest Suburban Special Education Organization (NSSEO) consultant for the school district.

Bethany Powers was advised of the student's schedule on the Monday before school started and contacted her teachers via email. She testified that the student's teachers would provide her with the work that wasdone in the class, two copies of the textbooks, and all worksheets and novels that would be read by the students.

In the beginning of the school year, Bethany Powers testified that the student

would walk to her classes. She testified that it progressively took the student longer to get to each class, eventually taking 10-20 minutes to even get to class, with the student stopping, taking a few steps, stopping, and so on. When in class, the student would hum quietly to herself. Other times, she would vocalize with a quick burst of vocalization. And then at other times it would be a more sustained vocalization where it lasted for several seconds, a minute nonstop. The intensity of the vocalizations seemed to increase as school went on as well. She seemed to get louder. She was so loud that you could hear her in the hallways. (R1503-1504) In response to the vocalizations, BP would look to the reactive strategy plan for vocalizations. She would follow each step and arrow down in communicating with her in trying to minimize those vocalizations. If the strategies did not work, the student would be removed to the hallway and the student would be asked if she wanted to go back to her workroom or if she wanted to be alone. Ms. Powers testified that there never was a plan that the student would return to the workroom after every class. Rather, it just happened based on her needs and behavior (R1636).

The student attended two class periods on the first day of school, the second day

she attended four periods, and on the third day of school (8-29-03) the student attended all six periods. In her testimony, Ms. Powers went through the setting events, antecedent behavior, etc. of the behavior data sheets. For 8-29-03, she testified that the "setting event" was that the student had her period and had not gone to the bathroom. As they were walking down the hall, the student head-butted her. At 10:40 a.m. the student grabbed at the teacher assistant's glasses, scratching her face. At 11:30 a.m., Ms. Powers was trying to toilet the student and the student head-butted Ms. Powers. There were no precursory behaviors noted in any of the foregoing incidents. At approximately the noon hour, Ms. Powers called the parents and they took the student home.

Bethany Powers testified that it was her understanding that the student had

typically arrived at school at 8:45 a.m. But as the school year went on, the student would arrive a bit later - 9:00, 9:10, 9:15 a.m. and Ms. Powers testified that the delay usually related to a toileting issue.

With the exception of August 27-29, 2003. Bethany Powers testified that she

prepared weekly summaries of the student's behaviors and had the weekly summaries available for the weekly team meetings. The summaries reflect that the student spent very little time in her academic classrooms. Ms. Powers testified that the student would miss class due to behaviors and would return to her workroom. Ms. Powers testified that upon her return to her workroom, the student would continue the behaviors thus preventing Ms. Powers from continuing the academic lesson in the workroom (R1711-1712)

With respect to the issue of peer interactions, Bethany Powers testified that peer

interactions were minimal. In the classroom she would encourage the student to work with a group when there was a group project going on, for example, in earth science. The student did not show interest in doing that. She would usually choose to go back to her work room when asked if she wanted to work with a group. (R1687) In English, there was not much opportunity for peer interactions. The student would get to class late whether it was toileting, snacks, taking a long time to walk to class, whatever it was. When Ms. Powers and the student would get to class, the English teacher would already be involved in teaching the class. Both of the student's academic courses, the earth science and the English, were lecture based classes, junior level classes where there is a lot of instruction. In earth science there were opportunities for labs, but by coincidence or for whatever reason, the student's absences or other concerns, the student was never in earth science on a lab day. (R1687-1688)

From the very beginning, the student behaved differently than she had behaved in the Spring 2003. Unknown to Ms. Powers, at her home, the student was harder to wake up, did not eat as well and did not smile as much (R7523) The student was absent from school from September 8-12, 2003 due to an impacted bowel. Bethany Powers testified that there were days when the student appeared off-balance, a little bit unsteady. There was a time when she fell back into a table. And there were times where she would run back and forth in the workroom. And when she would run, she would get close to the paper towel holder, close to cabinets. In the hallway walking to class, sometimes she seemed unbalanced if staff was not physically prompting her. She would walk on an angle. (R1547-1548)

Bethany Powers testified that the student had abbreviated attendance in English

and Earth Science and the short amount of time had an effect on her staying with the class as to what they were doing. Work had to go home. And when work went home, it was promptly returned and done. But it was minimal in comparison to what the class was doing (R1550) The student would miss the beginning social interaction time when she would arrive late to class. "Her curriculum was minimal to the regular education

curriculum and it was a smaller percent of what the regular education class was covering" (R1551)

Looking at a calendar for the months of September, 2003 and October, 2003

created by Jennifer Peterson from data conveyed to her by Bethany Powers (EXHIBIT 59 AND 60), Bethany Powers testified that the student was absent 16 days and was in school for all six periods on five days.

On October 16, 2003, Vic Morris and Alice Belgrade observed the student in two

general education classrooms and then met privately with Jennifer Pearson and Bethany Powers Vic Morris recalled that, given the degree of concern and frustration expressed by Bethany Powers, he was concerned about whether there was adequate monitoring and review of the behavior strategies and whether other modifications might be necessary. On the very day that Vic Morris and Alice Belgrade observed the student, her Earth Science teacher, Hank Thiele, testified that the student was not having a particularly good day in the classroom. He recalled that it was the only day where he came close to actually asking Bethany Powers to remove the student. Unusually he would let Ms. Powers determine if the student would remain but on that particular day the student's vocalizations "...were extreme, almost to the point where class could not continue". Ms. Thiele testified that in the absence of Vic Morris and Alice Belgrade, he would have asked that the student be removed from his classroom. (R230) On bad days, Mr. Thiele testified that the students in neighboring classrooms could not concentrate because of the student's vocalizations. (R231-232)

8. NOVEMBER 5, 2003 IEP MEETING

Vic Morris attended the IEP meeting and expressed his concerns about the

student's current placement and concurred in the IEP team's conclusion that the student's placement should be changed to a self contained special education placement. Vic Morris recalled that Alice Belgrade appeared to be of the opinion that the root of the student's problem in her current placement was staff failure to effectively implement the behavior plan. Vic Morris did not believe that he could agree with that opinion based on his one observation in October 2003. Vic Morris further stated that in his opinion, a behavior intervention plan based on flawless or very high levels of implementation as a requirement of their effectiveness is generally going to be ineffective in school settings because there will always be errors in implementation. In addition, Vic Morris did not believe that the environmental supports to assist and level out those errors were available at Conant High School. (R2274) In Vic Morris's opinion, a self contained special education placement would be more effective in helping the student deal with vocalizations and any physical type of behaviors where the student could harm herself or possible harm other students or staff. (R2277-2278)

At the hearing, Jennifer Pearson stated that in November, 2003 she and the IEP

team had not changed their opinion as to the most appropriate education placement for the student. Rather, Ms. Pearson and the IEP team believed that the student required a self-contained special education classroom similar to the program operated by NDSEC at

Lake Park High School. At the hearing, Ms. Pearson testified that the student required a self-contained setting for the following reasons:

One, looking at meaningful goals, a lot of these goals are related to functional aspects that are done within a self-contained environment. When the student was not within the regular classroom and looking at the amount of time she spent within the Regular Ed classroom, the student was isolated with a teacher and teacher assistant. There is not a multiple-needs program at Conant High School to serve her needs. And I feel that the student was spending a lot of time within the separate environment from the classroom based on the disruptive vocalizations, based on the self-injurious behaviors. My concern was that overall she was spending minimal amount of time in the regular education environment and still continuing to exhibit self-injurious behaviors and disruptive vocalizations that effected her ability to participate. (Jennifer Pearson R2768-2770) So after the spring of her junior year, I still would not describe that as successful. The concerns that led me to believe that the student requires a self-contained multiple-needs program are that the student still continues to have disruptive vocalization that warrant removal from her classes; that she was in her Regular Ed classes less than 15 percent of the time and that is an approximation; that when she was not in her classes, she was in, in my wording, an isolated environment in her work room with a teacher and a teacher assistant; that the goals that she was working on, although functional in nature and that she had made progress compared to her regular curriculum, that I don't have expectations that she applied to the same standards as the regular education classroom. In my eyes it is still not meaningful to the regular curriculum. That the student still continued to exhibit self-injurious behaviors, disruptive vocalizations and attempts to hit and head butt staff and on occasion did so, despite intervention to monitor her proximity, despite the training that staff received in the spring. (Jennifer Pearson R2776-2778) The IEP team changed the student's placement to a self-contained classroom and

on November 13, 2003, counsel for the parents asked that the due process proceedings be reinstated. On November 14, 2003, CAROLYN ANN SMARON was reappointed as hearing officer. The prehearing conference took place on December 4, 2003. A prehearing conference report was issued and subsequently amended on January 6, 2004 identifying the following issues and proposed remedies:

PARENT ISSUE: The parents allege that the local school district has failed to comply with the terms of a Settlement Agreement entered into by the parents and the local school district on November 5, 2002 including but not limited to the following issues:

1. Paragraph 3 of the Settlement Agreement provided that the parties would utilize the services of ALICE BELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL for the purpose of formulating, implementing and revising an effective behavior intervention plan. The parents allege that the local school district failed to implement appropriate functional behavioral analyses or behavior intervention plans. 2. Paragraph 4 of the Settlement Agreement provided that there would be modifications of the content or method of delivery of the student's Individualized Education Plan as an outgrowth of the functional behavior assessment and behavior intervention plan. The parents allege that the school district failed to develop an appropriate Individualized Education Plan including related services e.g. speech/language, occupational therapy, updated assistive technology and sensory integration evaluations. 3. Paragraph 5 of the Settlement Agreement provided that the panel of experts would train staff in understanding the characteristics of Rett Syndrome, would train the staff in behavior management strategies and would train the staff in non-violent safety procedures prior to the initiation of her program. The parents allege that the local school district personnel failed to cooperate in attempts to provide the foregoing training to them. 4. Paragraph 9 of the Settlement Agreement provided for a panel of experts to devise a plan for the student's return to Conant High School. The panel of experts were unable to reach consensus upon a plan. The parents allege that the least restrictive environment for the student is Conant High School with appropriate supports and related services in place. 5. The parents allege that while the student was attempting to return to Conant High School on a full time basis, the local school district excluded the student from using the swimming pool. 6. The parents allege that at no time subsequent to the Settlement Agreement has the local school district provided a free appropriate public education to the student. REQUESTED REMEDY: 1. A finding that the local school has denied this student a free appropriate public education in the least restrictive environment. 2. An Order that the student's placement should be Conant High School.

3. An Order that the local school district employ an independent behavior specialist and such other specialists as the parents and the identified independent behavior specialist determine are necessary, to develop an appropriate Individualized Education Plan for this student. 4. An Order that the local school district employ the independent behavior specialist to (a) provide on-going training, monitoring, and consultation to local school district staff and to the student's parents; (b) have on-going authority for the implementation of the student's educational program at Conant High School including the ability to approve staff hired to work with the student, classes selected by the student, and all other issues related to her educational program. In effect, the parents ask that the independent behavior specialist act as special master in the general supervision of the student's program. 5. An Order that the local school district provide two years of compensatory education to follow her successful graduation or aging out of Conant High School including educational, vocational, therapeutic and other services.

APPLICABLE LAW

The law applicable to the facts in this case is set forth in the Individuals with Disabilities Education Act (IDEA), 20 USC §1401 et seq., the federal regulations to IDEA, 34 CFR Part 300, the School Code of Illinois, 105 ILCS §5/14-8.02 et seq., and the applicable state regulations, 23 Ill.Admin.Code Part 226. The local school district bears the burden of proof that at all times relevant it properly identified the nature and severity of the student's suspected disabilities and if appropriate, that it offered the student a free appropriate public education in the least restrictive environment, consistent with procedural safeguards.

In Board of Education, Hendrick Hudson Central School District. v. Rowley,.

458 US 176 (1982) ("Rowley"), the Supreme Court set forth a two pronged test for evaluating whether or not the school district has complied with applicable special education laws - there must be compliance with statutory procedures and then the individualized education program (IEP) developed through such procedures must be reasonably calculated to enable the student to receive educational benefit.

APPLICATION OF LAW TO THE FACTS

In Board of Education, Hendrick Hudson Central School District. v. Rowley,.

458 US 176 (1982) ("Rowley"), the Supreme Court set forth a two pronged test for evaluating whether or not the school district has complied with applicable special education laws - there must be compliance with statutory procedures and then the individualized education program (IEP) developed through such procedures must be reasonably calculated to enable the student to receive educational benefit. In Kevin T. v.

Board of Education of Evanston Committee Consolidated School District, 36 IDELR 153 (N.D.Ill.2002) the Northern District of Illinois further clarified the procedural requirements of Rowley. In Kevin T., the hearing officer made a conclusory finding that the alleged procedural violations, if they were violations, could have been dealt with at the time or through due process proceedings. The hearing officer found that the parents were able to fully participate in the student's education and thus concluded that the alleged procedural violations did not violate the student's right to a free appropriate public education ("FAPE"). The court found that while parental participation is one of the key components in assessing procedural violations, the fact that the parents had adequate notice and were able to participate in the proceedings does not end the inquiry. In addition, one must inquire further to determine whether the alleged procedural violations deprived the student of an IEP or resulted "in the loss of educational opportunity". Kevin T.

In the instant case, the parents cannot seriously contend that there were any

procedural errors as it is uncontroverted that the parents of the student, with their attorney, attended the August, 2002, August, 2003 and November, 2003 meeting and participated in the preparation of an Individualized Education Plan (IEP) during each meeting. In fact, the evidence is overwhelming that the parents were maximally involved in the IEP process, its implementation and modifications. The first prong of the Rowley test was satisfied and the focus moves to the second prong: were the IEPs reasonably calculated to provide educational benefit and the corollary, did the student receive educational benefit.

It would appear that the parents are focused on the August, 2003 IEP meetings in

their contention that the school district failed to formulate and implement a cohesive, effective behavior intervention plan (BIP), failed to address all of the student's needs, failed to provide the student with a transition or extended school year (ESY) services, and failed to provide her with appropriate related service. However, the IEP which was implemented in Spring 2003 was the IEP developed in August 2002 as amended by the provisions of the Settlement Agreement in November, 2002. . The parents contend on a fairly consistent basis that they were denied "meaningful" participation in the creation of the three IEPs. On a fairly consistent basis throughout the hearing, the parents attacked the three year evaluation of the student in general and the psychological evaluation by the University of Chicago in particular. Well "meaningful" is in the eye of the beholder and the facts of this case tell another tale.

In Kevin T., the court found that it had to assess the student's intellectual

potential, given his disability, and then determine the academic progress the student made under the IEPs designed and implemented by the district. In the instant case, there is a serious disagreement as to whether the student's intellectual potential was ever correctly assessed. Even more confounding, it would appear that there is a serious disagreement as to whether one can properly assess the intellectual potential of any student with Rett Syndrome.

The student suffers from a rare pervasive developmental disorder known as Rett Syndrome characterized by severe communication deficits, hand stereotypies, and apraxia. From a young age, the student had clear developmental delays in all areas, engaged in self-stimulation, showed an impaired ability to concentrate and to attend, had severely affected expressive language skills, and had frequent shifts from topic to topic with little interruption. It is clear that the school district knew that the student had Rett Syndrome before she entered Conant High School and accordingly prepared an IEP that mapped out how the school district would provide the student with an IDEA-compliant education during her freshman year. Based upon the information then available, the school district developed an IEP, created a special workspace for the student, and placed the student with her own special education teacher in regular education classes. Although there has been no issue raised as to the IEP which was in place during the student's freshman year, behavioral data suggested that the student spent more than 50% of her day within the work room with her behavior vacillating between cooperative and compliant to agitated and noncompliant.

During the second semester of her freshman year, the student was absent a total of

sixteen days, due to family vacations, illness, out-of-school suspensions, and the testing at the University of Chicago. The student's last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the student's behavior and the creation of a behavior intervention plan, the student's behavior clearly interfered with the ability of the school district to provide an education to the student. It is clear that the situation was not working!

At the hearing, Bennett Leventhal and Marrea Winnega were questioned quite

intensely about their multidisciplinary evaluation of the student completed in August, 2002. Both Dr. Leventhal and Dr. Winnega persisted in their belief that they were not concerned about the difficulty in assessing the student's level of cognition.

I think we have been quite clear about this repeatedly that that wasn't our major concern at the time. And we felt that her behaviors were so disruptive that it made it difficult to know what was -- what her real capacity was. And we thought -- felt strongly that if we get her behaviors under control, we might have a better sense of her function. I don't think anybody else's work that I have seen thus far has suggested that there are young women who have who are in the normal range of intelligence or the average range of intelligence. So we are still talking about a syndrome that is largely confined -- that largely includes people that have significant cognitive impairment. Much the same is true for autism. I mean, more than 75 percent have cognitive impairment. Why that is, what that means I think is still an open question. (Leventhal R4011,4021) Dr. Winnega testified that the multidisciplinary evaluation recommended a

functional analysis of the student's behavior and development of a new behavior plan. The Clinic recommended that the analysis and behavior plan should be developed in a

stable very controlled environment with a particular focus on the student's aggressive behaviors. Regarding placement, the Clinic recommended a highly structured, self-contained setting that could develop and operate an intensive behavioral intervention for aggressive and self-injurious behavior while also addressing fundamental skills such as basic compliance training, a self-contained special education program that has very strong behavioral training capabilities. It was the judgment of Dr. Winnega that the intensive behavior management that the Clinic was suggesting could not be done in a regular education setting and could not be implemented at Conant High School (2189) In light of subsequent events during Spring 2003, Dr. Winnega seems prescient.

With all of this as a background, the parties participated in an IEP meeting on

August 23, 2002. The IEP team concluded that it was difficult to fully appreciate the student's cognitive potential and other capacities because her behavior grossly interfered with her ability to respond and the ability of staff to work in close proximity to her. There was absolutely nothing in the testimony of Bennett Leventhal that was inconsistent with the conclusions of the IEP team. Marrea Winnega testified for days and in great detail about her testing of the student - where the testing took place, who was there, what tests were administered, what the student's cognitive levels were, what the "age equivalence" levels were, whether or not the tests were completed, etc. All of that testimony is a "red herring" in that it was the student's behavior which interfered with her education.

It should be noted that there has been a pretty persistent disagreement between the

parties as to the student's cognitive levels with the University of Chicago multidisciplinary team concluding that the student functions at the level of borderline to moderate mental impairment and the parent's insistence and the insistence of their behavior specialist, Alice Belgrade, that the student functions at a much higher level. Dr. Alan Percy, produced by the parents as a medical expert in the evaluation and treatment of girls with Rett Syndrome, testified that available literature suggests that girls with Rett Syndrome typically have a mental age at the 8-10 month level. Just viewing the videotape of the student leads one to the inescapable conclusion that the student functions at a high level than that. However, it was the student's behavior during her freshman year which was before the August 2002 IEP team. It was the IEP team's belief that until the student's behavior was under control, she could receive no academic benefit from placement in regular education classes. After developing goals and objectives, which were functional in nature, the IEP team directed that the student should be placed in a more restrictive self-contained program that intensely focused on implementation of a behavior management plan to address the student's maladaptive behaviors ("alternative day school").

Pursuant to the Settlement Agreement, the parties ultimately delegated to ALICE

BELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL ("the Panel") the responsibility for formulating a plan for the student's return to Conant High School. The parties agreed that Alice Belgrade, Vic Morris and Mark Lenz would develop a functional analysis of the student's behavior and a Behavior Intervention Plan to facilitate the student's return to Conant High School with Vic Morris serving as the

coordinator for the purpose of scheduling and coordinating the activities of the Panel. Finally, the parties agreed that the plan for the student's return was to reflect the "consensus" of the Panel and in the event that the Panel could not reach "consensus", the dispute would be returned to an impartial due process hearing officer or to Judge Kennelly in federal court.

It is interesting to note that in the development of the settlement agreement,

counsel for the parents noted that a requirement of unanimity could be troublesome in that one Panel member could block the student's return to Conant High School. It appears that the foregoing language regarding "consensus" was a response to this concern. What none of the parties anticipated was that by June, 2003, the Panel would be in agreement that the student should not, in fact, return to Conant High School. The agreement stated that the student's return to Conant High School was a "goal" but no one anticipated that by June, 2003, the Panel itself might view that "goal" as unachievable. And, finally, none of the parties anticipated the resignation of one of the Panel members at the August 2003 IEP meeting. Dr. Leventhal understood that the parties had agreed that a panel would be assembled to monitor and make recommendations about the student's continuing education. From the beginning, Dr. Leventhal had reservations about whether the student could be reintegrated back into Conant. (R3934-3935)

The panel communicated among themselves either in person or by telephone or by

email. They met on December 11, 2002 to establish an initial course of action. They met on December 17, 2002 to review the student's file and allocate responsibilities among the panel members. The panel agreed to use and rely upon the on-going data and summary data that Alice Belgrade had compiled and continued to compile during her work with the student at her home. Dr. Leventhal was to review the medical records and provide consultative support. Vic Morris's role was to review the environments available at Conant High School and to help develop behavior support strategies that might be helpful at Conant. From the start, the panel's activities seem star-crossed:

• the panel members experienced problems in communicating quickly and reliably. • Vic Morris placed heavy reliance on "precursory behaviors" as opposed to Alice

Belgrade's reliance on the environment as an antecedent to targeted behavior. Further, in Alice Belgrade's work with the student in her home she had found no significant correlation between precursory behaviors and the occurrence of targeted behaviors. Consider the dilemma then of Conant High School when they were told that they should look for precursory behaviors as a predictor of targeted behavior.

• Vic Morris completes an environmental assessment of a crowded high school building and notes that the distance between the student's workroom and her English class is far away and that there are no bathrooms available for the student's use should she require the need for toileting outside the workroom. Apparently the distance was not a "deal breaker" for the student's return to Conant High School although counsel for the parents questioned school district witnesses endlessly about the distance at the hearing.

• the data collection form utilized by the educators does not defined "intense vocalizations" despite clear knowledge that the student had engaged in sustained "intense" vocalizations

• despite Alice Belgrade's belief that a functional analysis of behavior should consist of at least five observations to assess whether there is a pattern to behavior with observation for at least a two hour period, none of this takes place as a predicate to development of the behavior intervention plan.

• On February 14, 2003, Alice Belgrade prepares a draft of a behavior intervention plan for the panel's consideration. Instead of a meeting of the panel to discuss the draft to develop a final version, Vic Morris prepares a behavior intervention plan of his own, sends it off to the school district and uses it in his staff development program on March 11, 2003. Unknown to Vic Morris, Alice Belgrade does not like the plan because she found it difficult to follow and believed that it would be difficult for others to follow. Alice Belgrade now appears prescient as by April 7, 2003, Vic Morris was becoming concerned that the district staff felt unable to implement or develop strategies for the student without consulting or obtaining the approval of the panel.

• Vic Morris clearly believed that as coordinator of the panel he could "speak" for the panel, often times creating confusion when he had not actually "checked in" with the other panel members. Consider his subsequent testimony at the August 7, 2003 IEP meeting where he reports that the panel believed that student had done well during her thirty-five days at Conant High School during Spring 2003. Clearly Vic Morris was entitled to that opinion, but the representation that his opinion was that of the panel was clearly confusing in light of the opinion of Bennett Leventhal expressed during a panel conference call on June 11, 2003.

• Alice Belgrade recalled that she "assumed" that the panel would develop criteria for behavior which would lead to an expanded day for the student. However, Ms. Belgrade also recalled that this area was never discussed thereafter. The focus of the panel quickly shifted to behavior assessment/planning and writing a behavior plan by three panel members who seldom could schedule time together. (R7732)

• During the Spring, 2003, Vic Morris had a growing impression that the staff felt that they were not able to do anything or make any decisions concerning the student's program unless the decision came from the panel. Vic Morris arrived at the impression because of the fairly consistent questions and requests for information which came from the team via Jennifer Pearson. (4429) Vic Morris did not believe that it was desirable for the panel to serve in the role of approving all strategies, interventions and training for the staff to work with The student. (4236-4237) It seemed apparent even during the hearing that the school district staff and Vic Morris had completely different "impressions" as to the role of the panel.

The student returned for three periods to Conant High School on April 21, 2003.

Everyone seems to agree that Jean Mansfield Link was a gifted special education teacher who had a special rapport with the student. However, during his work on the panel, Dr. Leventhal recalled that he reviewed data and various communications and recalled that there were some questions about the persistence of the behaviors, the physical behaviors,

self-abusive and aggressive behaviors toward others and then the vocalizations which were a serious problem as well. (R3937-3938)

There was some concern about questions about how much time she spent in the regular classroom and how much she spent in her area. There are rooms that have been put together for her with her teachers away from the other kids. And how so-called good day and not so good days and how many of each there are. So we tried to get some sense of what was the predominance of her activities and how it was playing out and what she might actually be learning. (Leventhal R3938) Once the student returned to Conant High School, Ms. Link testified that it was

very difficult to assess the student academically because the time dedicated for academic use was often occupied by dealing with her behaviors (R5794) She recalled that she was able to continue working with the student when she presented with agitated or problematic behavior, "at times" (R5465) She attempted to continue working because they did "not want self-injurious behavior, vocalization to be a means of escape from a task" (R5466) Clearly nothing of any academic value is occurring because of the student's behaviors.

Jean Link testified that there was a definite relationship between the effectiveness

or ineffectiveness of the student's ability to communicate and the behaviors which may have followed. "The student would become frustrated as any of us would when somebody wasn't understanding what she wanted or what she was trying to say...and there were times when we weren't getting it. We didn't understand what she was telling us. And she would get frustrated, and that would result in behavior". It seems clear that the behavior intervention plan was not working in the current environment.

Jean Link testified that in her opinion the other students would be startled and

uncomfortable when the student would vocalize in English class ("it was a quiet environment and, you know, she could vocalize pretty loudly" R5655) Ms. Link testified that the student's vocalizations played a big role in her ability to remain in her English class. If the student was vocalizing very loudly, she, obviously, could not keep the student in the room because it was disruptive to what was going on with all the other students (R5799) Juxtapose this testimony with the testimony of the English teacher, Scott Altergott, when he recalled that during the spring semester the student had been "restrained" in his classroom - the special education teacher had to hold on to her arms because the student was either hitting herself or jumping up and down and swinging her arms or hitting herself. (R901-902) The disruptive nature of the student's attendance in the English class cannot be ignored.

With regard to the student's educational progress, Jean Link recalled that most of

the English academic instruction occurred in the self-contained workroom. (R5792) Most of her IEP goals were attempted in the work room because it was hard to do in the

classroom without being disruptive. (R5812) Ms. Link also testified that it was very difficult to assess the student academically as the time dedicated for academic use was often occupied by dealing with her behaviors. Further, Ms. Link testified that it was difficult to assess the student because it was hard to tell at times which choice she was really making, where she really meant to point vs. where she actually did point. Ms. Link also testified that the student would vocalize when she would feel distracted or over stimulated by sound and thus the work room, which was quieter, was a place where the student could focus more on her academic progress. (R5813)

Following are direct quotes from the testimony of Jean Link regarding the

student's thirty-five days at Conant High School in Spring 2003:

the majority of missed classes can be directly attributable to physical needs" - some sort of pain, needed to use the rest room, she was hungry, just physical issues that we determined from asking her questions (R5668)

they used "positive feedback" in the classroom based on her observation of

how Alice Belgrade worked with the student. The "positive feedback" was snacks but "alot of times the student was then distracted by food...we were hesitant to use it too much because it seemed like she was just focused on the food" (5673)

the majority of the teacher's contact with the student has been social - had

been of a social nature - this is largely due to the fact that most of student's instruction was provided directly by her inclusion facilitator as well as her dedicated classroom teaching assistant - Donna and I provided most of her instruction (R5679) There was a plan for the student to have actual interaction with her English teacher on a daily basis by having the teacher ask her a question at some point during the class that had been preplanned with a preplanned response. But that did not work out because sometimes the teacher wasn't ready to ask the question that he had prepared for the student, if the discussion had gone longer or if the student had to leave, and sometimes the student was not present for the planned interaction. (R5682)

"although The student has spent a minimal amount of time in the school

environment, 35 days total, she has responded positively to her shortened schedule and individualized program of instruction" means "in the amount of time that I had to observe her, I think she did very well" (R5684) However, Ms. Link also recalled that when she worked with the student in her home, they were able to do alot more academic work. (R5684-5685) The main difference for the differentiation in the academic progress that the student was able to free to set her own schedule ...at home schedules were more flexible than in a mainstream school. (R5793)

"The student has a great of deal of physical needs as well as difficulty with

blocked communication. She has made a phenomenal effort to overcome these

obstacles utilizing the support offered to her" - she tried very hard. But if the student was frustrated "...she would get to a point where she was upset or angry because we didn't understand her or weren't getting the message that she was trying to give us. And sometimes she would - frequently, it was self-injurious behavior, she would hit herself, get upset. That was her way of communicating she was upset or frustrated with us" (R5693-5694) Counsel for the parents asked Ms. Link if she would have added anything to the

student "strengths" section of the August 2003 IEP. Ms. Link responded that she would have inserted a statement that she tried to get the student to class as much as possible. Recall that Ms. Link testified that of the 35 days that the student attended Conant in the Spring 2003, there were only two of those 35 days that the student stayed in the English class for the full fifty minutes. Her charting of the student's behavior on a daily and weekly basis tell the tale - for all practical purposes the student was receiving "instruction" in an isolated setting.

Prior to her exit from the school district, Ms. Link completed a report

dated June 13, 2003 about the student's progress on her August, 2002 IEP goals. Note the functional nature of the goals and Ms. Link's comments:

1. The student will semi-independently improve understanding of "who" questions. According to Ms. Link, the student has "demonstrated the ability to respond quite accurately in the academic setting. The student is approximately 90% accurate with her responses in a social setting when she is calm and all of her physical needs have been addressed. The 90% declines significantly when the student is agitated. 2. The student will develop proper hygiene for lunch and toileting. According to Ms. Link, the student can wash her hands with soap and water with maximum assistance. The student needs hand-over-hand assistance to complete all steps with the exception of removing the paper towels from the dispenser. Ms. Link reported that the student requires verbal and physical prompts. The objectives did not specify how much assistance so Ms. Link indicated the student needed "maximum" assistance and then with that, she met those goals. 3. The student will respond to a personal greeting. Ms. Link qualifies her statement that the student has met this goal by stating that the "majority of missed attempts do occur when the student is agitated or distracted by physical needs" 4. The student will demonstrate the ability match objects/pictures. Ms. Link clearly states that the student met this goal with and without physical assistance.

5. The student will improve her sorting skills. Ms. Link clearly states that the student met this goal with and without physical assistance. 6. The student will improve functional self-care for more independence in the school as seen by using spoon with moderate assistance for feeding. Ms. Link clearly states that the student met this goal with and without physical assistance. 7. PT Goal: The student will demonstrate the ability to transition from one position to another for functioning within the school environment. 8. Speech Goal: The student will demonstrate 4 communication skills 9. The student will be able to function safely in the school building - need to develop after "functional analysis" 10. AT Goal: With assistance and the use of no tech, low tech and high tech, the student will share home happenings with others. 11. The student will demonstrate sustained attention to tasks individual then group focused activities (requiring minimal fine motor coordination. According to Ms. Link, The student met all of the objectives in an individual setting but not in a group setting. (R5721) What is striking about Ms. Link's testimony and the documents created by her are

the almost complete absence of any comments about the student's educational performance. In addition, Ms. Link testified that she evaluated the student on her "good" days, remaining silent about the "bad" days when the student exhibited negative behavior. Ms. Link testified that the student was not able to do many things when she was in the course of having a bad day.

I mean, certainly, she had behavior issues. I mean, I am not going to discount that she didn't have bad days. But most of the data that was taken as far as, you know, if the student was able to scoop, if she was able to answer questions, those kinds of things were on days where she was having good days. So I guess if that is slanting it in a positive direction, then I guess that is what I did. (Jean Mansfield Link R5733-5734) Despite the positive image portrayed in Ms. Link's report of the student progress

on her IEP goals, it is clear that the student spent little time in her academic classroom. It seems self-evident that the student's behavior interfered with her receiving any actual educational benefit from her time at Conant High School and that none, in fact. occurred. However, during this hearing, the parents seem clearly focused on a different definition

of "educational benefit", one that focused on the student's social interactions with her peers.

Bennett Leventhal, Alice Belgrade and Vic Morris participated in a conference

call on June 2, 2003. Bennett Leventhal recalled that he participated in the discussions relating to the creation of a report, to be largely authored by Vic Morris, which would provide the parties with the panel's thinking. Bennett Leventhal clearly believed that the panel members had concluded that it was not in the best interest of the student or the other students at Conant High School that she return to Conant High School in the Fall, 2003.

By June 2, 2003, the panel was interested in setting a date to discuss a way to end

the panel. Vic Morris and the other members of the panel had concluded that the process was complicated and time consuming and there were probably better ways to support the student's needs. Some members of the panel wanted to gather information about other educational placement options within the school district and in fact observed the Kirk placement but they were stopped cold by counsel for the parties. The panel was told to focus on the student's return to Conant High School. It is clear from the testimony of Vic Morris and Bennett Leventhal that on June 2, 2003 two of the three panel members believed that the student did not belong at Conant. It is also clear from the testimony of Bennett Leventhal that both he and Vic Morris believed that Alice Belgrade had agreed with them on June 2, 2003. Why else would the panel start to investigate other placement options? It is at this point that things become strange: there is a panel charged with developing a plan for the student to return to Conant High School and the panel no longer believes that the student should return!

Something odd seemed to have happened during the summer of 2003. Opinions

held on June 2, 2003 seemed to change for no apparent reason. Alice Belgrade prepared a summary of the June 2, 2003 telephone conversation that was at odds with what had been discussed by the three panel members. Opinions were offered which suggested that they were based on "data" and the "data" did not support the opinion (recall Vic Morris' statement that the student did well during the spring vs. Jean Link's behavior logs) Both panel members were baffled when Alice Belgrade subsequently recommended at the August 15, 2003 IEP meeting that the student's time at Conant High School be increased. And then to further confound the parties, Vic Morris resigned.

Prior to his resignation on August 7, 2003, Vic Morris presented a "report" which

was a rambling email containing points of agreement and disagreement among panel members. Unknown to any members of the IEP team was the fact that neither Alice Belgrade nor Bennett Leventhal had approved the email as a "report" of any kind. The document was intended to provide an update and clarification of several issues and concerns regarding the student's program from the perspective and consensus of the panel. The "report" did not contain any specific panel recommendation about the number of classes that the student would attend in the Fall, 2003. (R2263). The panel never reached any consensus about what would happen in the Fall, 2003. The panel was in no

position to recommend anything other than Conant because they had been advised that it was not within their "job description" to investigate any placement other than Conant.

The educational members of the IEP team were clearly between "a rock and hard

place" at the August 15, 2003 IEP meeting. They were presented with a panel "report" which took no position on the student's return to Conant High School. They were greeted with the resignation of Vic Morris. Alice Belgrade was the only panel member who attended the August 15, 2003 IEP meeting and she advanced the position that the student should return to Conant High School on a full-time basis. On the advice of counsel the Conant High School educational staff returned the student to Conant High School and they "negotiated" the number of periods to six. In this hearing officer's opinion, the IEP team should have concluded on August 15, 2003 that the student's placement should be changed to a very intensive intervention setting that was highly structured with a large group of people who are experienced in working with a student as complex as this student i.e. self-contained multiple needs program. There is more than enough testimony, emails, and documents to support a conclusion that the student received no academic benefit from her attendance at Conant High School in the Spring 2003 and received minimal benefit from the behavior intervention plan developed by the panel - the student vocalizations could be suppressed for about a minute and a half!, the student still could not be maintained in a classroom without disrupting the classroom. Instead, in acquiescing to the demands of the parents and their behavior expert, the student's day was doubled with pretty predictable results. The true tragedy is that no one could foresee the painful bowel obstruction and no one could foresee the effect of increases in the student's anti-depressant and anti-psychotic medications (Affidavit of Jane Feldman, the student's psychiatrist)

The student was scheduled for six classes in the Fall 2003: two academic classes -

English and Earth Science, Foods, Physical Education, Lunch and a Resource Period. Jean Mansfield had resigned and the school district had not retained the student's 1:1 aide. The student had a new special education teacher (Bethany Powers) and 1:1 aide (Nora Mulcrone) with a 1:1 aide backup (Debbie Osenberg)

In the beginning of the school year, Bethany Powers testified that the student

would walk to her classes. She testified that it progressively took the student longer to get to each class, eventually taking 10-20 minutes even to get to class, with the student stopping, taking a few steps, stopping, and so on. When in class, the student would hum quietly to herself. Other times, she would vocalize with a quick burst of vocalization. And then at other times it would be a more sustained vocalization where it lasted for several seconds, a minute nonstop. The intensity of the vocalizations seemed to increase as school went on as well. She seemed to get louder. She was so loud that you could hear her in the hallways. (R1503-1504) In response to the vocalizations, BP would look to the reactive strategy plan for vocalizations. She would follow each and arrow down in communicating with her in trying to minimize those vocalizations. If the strategies did not work, the student would be removed to the hallway and the student would be asked if she wanted to go back to her workroom or if she wanted to be alone. Ms. Powers testified

that there never was a plan that the student would return to the workroom after every class. Rather, it just happened based on her needs and behavior (R1636).

The student attended two class periods on the first day of school, the second day

she attended four periods, and on the third day of school (8-29-03) the student attended all six periods. In her testimony, Ms. Powers went through the setting events, antecedent behavior, etc. of the behavior data sheets. For 8-29-03, she testified that the "setting event" was that LR had her period and had not gone to the bathroom. As they were walking down the hall, the student head-butted her. At 10:40 a.m. the student grabbed at the teacher assistant's glasses, scratching her face. At 11:30 a.m., Ms. Powers was trying to toilet the student and the student head-butted Ms. Powers. There were no precursory behaviors noted in any of the foregoing incidents. Consider the testimony of Alice Belgrade that she had never noted any precursory behaviors when she worked with the student in her home. Imagine that you are Bethany Powers and you have been told that there were precursory behaviors!

With the exception of August 27-29, 2003. Bethany Powers testified that she

prepared weekly summaries of the student's behaviors and had the weekly summaries available for the weekly team meetings on Thursdays. The record is clear that, again, the student spent very little time in her academic classrooms. Ms. Powers testified that the student would miss class due to behaviors and would return to her workroom. Ms. Powers testified that upon her return to her workroom, the student would continue the behaviors thus preventing Ms. Powers from continuing the academic lesson in the workroom (R1711-1712)

From the very beginning, Bethany Powers noticed that the student behaved

differently than she had behaved in the Spring 2003. Unknown to Ms. Powers, the student was harder to wake up, did not eat as well and did not smile as much (R7523) The student was absent from school from September 8-12, 2003 due to an impacted bowel. Bethany Powers testified that there were days when the student appeared off-balance, a little bit unsteady. There was a time when she fell back into a table. And there were times where she would run back and forth in the workroom. And when she would run, she would get close to the paper towel holder, close to cabinets. In the hallway walking to class, sometimes she seemed unbalanced if staff was not physically prompting her. She would walk on an angle. (R1547-1548)

Looking at a calendar for the months of September, 2003 and October, 2003

created by Jennifer Peterson from data conveyed to her by Bethany Powers (EXHIBIT 59 AND 60), Bethany Powers testified that the student was absent 16 days and was in school for all six periods on only five days.

On October 16, 2003, Vic Morris and Alice Belgrade observed the student in two

general education classrooms and then met privately with Jennifer Pearson and Bethany Powers. Vic Morris recalled that, given the degree of concern and frustration expressed by Bethany Powers, he was concerned about whether there was adequate monitoring and review of the behavior strategies and whether other modifications might be necessary.

On the very day that Vic Morris and Alice Belgrade observed the student, her Earth Science teacher, Hank Thiele, testified that the student was not having a particularly good day in the classroom. He recalled that it was the only day where he came close to actually asking Bethany Powers to remove the student. Unusually he would let Ms. Powers determine if the student would remain but on that particular day the student's vocalizations "...were extreme, almost to the point where class could not continue". Ms. Thiele testified that in the absence of Vic Morris and Alice Belgrade, he would have asked that the student be removed from his classroom. (R230) On bad days, Mr. Thiele testified that the students in neighboring classrooms could not concentrate because of the student's vocalizations. (R231-232)

In Beth B. v. Van Clay, 211 F.Supp.2d 1020 (N.D.Ill.2001) the court held that

although Congress made a clear policy choice that disabled students benefit from interaction with non-disabled peers and should do so to the maximum extent possible, it does not override the primary obligation to provide educational benefit to the student. A district need not, indeed may not, place a child in a program that does not confer educational benefit simply because it is less restrictive. Beth B. at 1026. In the instant case, the school district, recognizing this obligation, chose to discontinue the placement at Conant High School on November 5, 2003.

Similar to the disputants in Beth B., each party here claims that their placement is

the only one that will provide the student with any benefit. Rowley defines a school district's obligations as "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Rowley at 203. The school district, when confronted with the student's behavior during her freshman year, went outside for a more sophisticated assessment of this student. This is the careful analysis required of school districts when it exercises its responsibility to deal with a wide range of disabilities. The school district clearly saw the need and acted upon it.

This student has a rare disorder. The hearing officer listened to the testimony of

Dr. Alan Percy who was accepted as a medical expert on the research, diagnosis and treatment of girls with Rett Syndrome. The hearing officer listened to the testimony of Professor Richard Van Acker who was accepted as an expert in the field of "best practices" in educational interventions for children with Rett Syndrome. However, it was clear from the testimony of all of the educational professionals that they did not view the student as a "disorder". Rather the school district developed Individualized Education Plans for the student who appeared within their building - a student with limited ability to communicate without utilizing augmentative communication, a student whose behavior actively interfered with her own education and the education of her fellow students and a student with limited body control (apraxia). The school district exercised its professional judgment as to how best to educate the student.

The school district presented sufficient evidence at the hearing that its proposed

placement will likely benefit the student. The parents seem to be advocating a placement at Conant High School because it is the student's neighborhood school. In Doug White v. Ascension Parish School Board, 343 F.3d 373 (5th Cir. 2003), the parents of the

student asked that the student be transferred to his neighborhood school contending that the transfer would enhance his social development, including allowing him to attend school with neighborhood children. The court focused on Rowley and its requirement that the IEP be reasonably calculated to enable the student to receive educational benefit. In refusing to grant the relief requested by the parents, the court stated that pursuant to Rowley, the focus of its inquiry was on academic achievement. IDEA required the school to provide services to allow the child the requisite basic floor of opportunity. It did not require the school to make special accommodations at a parent's request (no matter how well intentioned), particularly where the request was unrelated to helping the child achieve academic potential. In addition, the court observed that none of its sister circuits that had addressed the issue had recognized a right to a neighborhood school assignment under IDEA.

However, the school district has also presented sufficient evidence that the

placement advocated for by the parents is completely inappropriate and provides no educational benefit to the student. The parents argue that the student will suffer a loss of self esteem and will lose the opportunity for interaction with her typical peers at Conant High School. Beth B. precludes placing a child in a program that does not confer educational benefit even if the proposed less restrictive placement meets the socialization needs of the student. Beth B. at 1026.

The parents claim that the student is entitled to a free appropriate public education

in the least restrictive environment citing Oberti v. Bd. of Educ. of Borough of Clementon School District, 995 F.2d 1204 (3rd Cir.1993) and Section 1412(a)(5) of IDEA with its clear preference for "mainstreaming". The reliance on Oberti is misplaced in light of Beth B. where the court asked two competing questions: (1) can the student receive a satisfactory education in a regular education classroom and (2) is the student mainstreamed to the maximum extent possible. The court concluded that the primary obligation of the school district is to provide an educational benefit to the student. In short, if a placement fails to provide educational benefit, the statutory presumption in favor of mainstreaming has been overcome. In the instant case, the evidence leads to the inescapable conclusion that continued placement at Conant High School was unsatisfactory.

In Beth B. the court observed that it was really presented with a choice between

two forms of special education. The court observed that the student sat in a regular classroom effectively segregated from the other children. Her cognitive limitations did not allow her to participate in the regular instruction. The student received a parellel curriculum. She had no meaningful interaction with her non-disabled peers during academic classes. The court concluded that the student was not being mainstreamed but was receiving special education within a regular education classroom.

In the instant case, this student spends very little time in her academic classrooms.

She spends the majority of her time in her workroom, isolated with her teacher and teacher assistant, because of her disruptive vocalizations and self-injurious behaviors. Similar to Beth B., this student is engaged in the "illusion" of mainstreaming. The

student is patently unable to remain in the regular education classroom. A district need not, indeed may not, place a child in a program that does not confer educational benefit simply because it is less restrictive. Beth B. at 1026

The federal court decision in Beth B. was appealed to the 7th Circuit. In its

decision, the court held that a school district must provide children with a free appropriate public education ("FAPE"), together, to the maximum extent appropriate, with nondisabled children ("LRE"). The first requirement is absolute and focuses on the school district's proposed placement; the second is relative and concentrates on other placement options. The LRE requirement shows Congress' strong preference in favor of mainstreaming but does not require, or even suggest, doing so when the regular classroom setting provides an unsatisfactory education. Where the proposed IEP passes muster under the Rowley standard, the FAPE mandate has been satisfied. Beth B. v. Van Clay, 282 F.3d 493 (7th Cir.2002)

The core dispute in this case involves whether the school district's decision to

place the student in a self-contained multiple needs classroom violates the LRE requirement of IDEA. Under IDEA, the district must mainstream the student by providing her with an education with her nondisabled peers to the greatest extent appropriate. The Supreme Court has stated that "the Act's use of the word "appropriate" thus seems to reflect Congress' recognition that some settings simply are not suitable environments for the participation of some handicapped children. Rowley at 197. It should be clear from the evidence that the student's continued placement at Conant High School is completely inappropriate in light of the student's behaviors and will not provide the student with a satisfactory education. The student spent little or no time in her regular education classes, received little academic instruction, and was not able to socialize with the other students because she was not in the classroom long enough. Every factor mentioned by the 7th Circuit in Beth B. strongly favors a finding for the district. Furthermore, the student's random aggressive and self-injurious actions were not at issue in Beth B. As counsel for the school district correctly points out in his brief: this case can be summarized in three words: "Beth B. plus behavior".

DECISION

IN IS HEREBY ORDERED that on or before fifteen (15) days of date of this

decision, the school district shall implement the placement contained within the November 5, 2003 Individual Education Plan by placing this child in a highly structured, self-contained setting that could develop and operate an intensive behavior intervention for aggressive and self-injurious behavior while also addressig fundamental skills such as basic compliance training. The self-contained program must have a very strong behavioral training capability. A placement similar to the multiple needs classrooms operated at NDSEC at Lake Park High School would be preferable. Within that placement, the staff shall re-assess the student's IEP, conduct a functional assessment of the student's current behavior and develop an appropriate behavior intervention plan. Once the behavior intervention plan has been developed and has been operational for an

appropriate period of time, the school district shall proceed with an assessment of the student's abilities so that appropriate educational programming can commence.

The school district shall submit proof of compliance with this order to the Illinois

State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 within thirty (30) days of the date of this order.

RIGHT TO REQUEST CLARIFICATION

Either party may request clarification of this decision by submitting a written request for such clarification to the undersigned hearing officer within five (5) days of receipt of this decision. The request for clarification shall specify the portions of the decision for which clarification is sought and a copy of the request shall be mailed to the party and to the Illinois State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777. The right to request such a clarification does not permit a party to request reconsideration of the decision itself and the hearing officer is not authorized to entertain a request for reconsideration.

RIGHT TO FILE A CIVIL ACTION

This decision shall be binding upon the parties unless a civil action is commenced. Any party to this hearing aggrieved by this decision has the right to commence a civil action with respect to the issues presented in the hearing. Pursuant to ILCS 5/14-8.01(i), that civil action shall be brought in any court of competent jurisdiction within 120 days after a copy of this decision was mailed to a party.

ISSUED this 24th day of August, 2004.

_____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer

CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Decision and Order was placed in the U.S. Mail at Flossmoor, Illinois, via certified mail return receipt requested, postage prepaid and directed to:

Mr. Matthew D. Cohen Attorney at Law

225 West Washington Street #2300 Chicago, IL 60606

Mr. Brooke R. Whitted

Whitted & Cleary Attorneys at Law

3000 Dundee Road #303 Northbrook, IL 60062

Dr. Elizabeth Brooks

Due Process Coordinator Illinois State Board of Education

100 North First Street Springfield, IL 62777-0001

on August 24, 2004.

____________________________________

CAROLYN ANN SMARON Attorney at Law 635 Argyle Avenue Flossmoor, Illinois 60422 708 798 0966 (facsimile 708 798 3430)

ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING

L. R. ) ) Student ) ) Case No. 3002 vs. ) ) TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer

CLARIFICATION OF DECISION

Counsel for the parents has requested clarification of the Decision and Order.

1. Counsel cites the following statement which appeared on page 45 of the Decision and Order:

It would appear that the parents are focused on the August, 2003 IEP meetings in their contention that the school district failed to formulate and implement a cohesive, effective behavior intervention plan (BIP), failed to address all of the student's needs, failed to provide the student with a transition or extended school year (ESY) services, and failed to provide her with appropriate related service. However, the IEP which was implemented in Spring 2003 was the IEP developed in August 2002 as amended by the provisions of the Settlement Agreement in November, 2002.

Counsel for the parents inquires if the above statement implies that implementation of the August 2002 IEP was barred by the Settlement Agreement. Counsel for the parent inquires if the above statement implies that the Settlement Agreement prospectively supercedes IDEA or the obligation to provide FAPE.

CLARIFICATION: The Decision and Order speak for themselves in the finding that the student's behavior in the placement at Conant High School actively interfered with all attempts to provide educational benefit to the student and that nothing of any educational benefit occurred at Conant High School in Spring, 2003 and Fall, 2003. Within the November, 2002 Settlement Agreement the parties themselves agreed to disagree: the school district remained convinced that the student's injurious behavior needed to be reduced incrementally in a self-contained program and the parents remained convinced that the school district had failed to adequately respond to the student's behavior during her freshman year. The parties assembled a panel of experts and the school district hired Jean Mansfield Link. The result: no educational benefit. Counsel for the parents misses the point: it was not the implementation but the placement.

2. Counsel cites the following statement (bold words) which appeared on

page 46 of the Decision and Order: Although there has been no issue raised as to the IEP which was in place during the student's freshman year, behavioral data suggested that the student spent more than 50% of her day within the work room -with her behavior vacillating between cooperative and compliant to agitated and noncompliant. During the second semester of her freshman year, the student was absent a total of sixteen days, due to family vacations, illness, out-of-school suspensions, and the testing at the University of Chicago. The student's last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the student's behavior and the creation of a behavior intervention plan, the student's behavior clearly interfered with the ability of the school district to provide an education to the student. It is clear that the situation was not working!

Counsel for the parents inquires as to the basis for incorporating "alleged" events from prior to the Settlement Agreement in the Order. CLARIFICATION: The Decision and Order speak for themselves in the finding that the events set forth above were contained within the Individual Education Plan developed in August 2002 and provided a context for the actions of the parties subsequent thereto. The events themselves happened - the absences, the nasal fractures, the creation of a "workroom", etc. The parties disagree as to the import of those events.

3. Counsel for the parents requests clarification of the conclusion that the parents had a meaningful opportunity to participate in the November 5, 2003 IEP meeting in light of the testimony indicating that Dr. Malito and Dr. Gates had already made the placement decision prior to the IEP meeting.

CLARIFICATION: No clarification is permitted as counsel is asking the hearing officer to reconsider a clear finding that the evidence was overwhelming that the parents were maximally involved in the IEP process, its implementation and modifications.

4. Counsel for the parents requests clarification of the Order directing the school district to place the student in a classroom similar to Lake Park High School in light of testimony that Lake Park High School is full and and then questions what the school district will do if there are "...no other appropriate and geographically accessible programs offered by the District". Counsel for the school district joins in the request for clarification requesting a separate Order that the parents sign Exchange/Release of Confidential School Records and Release of Mental Health Information in the form submitted to counsel for the parents on August 26, 2004.

AMENDED DECISION AND ORDER

IN IS HEREBY ORDERED that on or before fifteen (15) days of date of this

decision, the school district shall implement the placement contained within the November 5, 2003 Individual Education Plan by placing this child in a highly structured, self-contained setting that could develop and operate an intensive behavior intervention for aggressive and self-injurious behavior while also addressing fundamental skills such as basic compliance training. The self-contained program must have a very strong behavioral training capability. A placement similar to the multiple needs classrooms operated at NDSEC at Lake Park High School would be preferable. Within that placement, the staff shall re-assess the student's IEP, conduct a functional assessment of the student's current behavior and develop an appropriate behavior intervention plan. Once the behavior intervention plan has been developed and has been operational for an appropriate period of time, the school district shall proceed with an assessment of the student's abilities so that appropriate educational programming can commence. The parents are ordered to execute any and all Exchange/Release of Confidential School Records and Release of Mental Health Information forms to allow release of information to proposed placements within ten (10) days of date of this Order and in general, cooperate in the placement process.

The school district shall submit proof of compliance with this Clarification of

Decision and Amended Decision and Order to the Illinois State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 within thirty (30) days of the date of this order.

RIGHT TO FILE A CIVIL ACTION

This decision and clarification shall be binding upon the parties unless a civil

action is commenced. Any party to this hearing aggrieved by this decision has the right to commence a civil action with respect to the issues presented in the hearing. Pursuant to ILCS 5/14-8.01 (i), that civil action shall be brought in any court of competent jurisdiction within 120 days after a copy of this decision was mailed to a party.

ISSUED this 29th day of August, 2004.

____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer

CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Clarification of Decision and

Order was placed in the U.S. Mail at Flossmoor, Illinois, via certified mail return receipt requested, postage prepaid and directed to:

Mr. Matthew D. Cohen

Attorney at Law 225 West Washington Street #2300

Chicago, IL 60606

Mr. Brooke R. Whitted Whitted & Cleary Attorneys at Law

3000 Dundee Road #303 Northbrook, IL 60062

Dr. Elizabeth Brooks

Due Process Coordinator Illinois State Board of Education

100 North First Street Springfield, IL 62777-0001

on August 30, 2004.

CAROLYN ANN SMARON Attorney at Law 635 Argyle Avenue Flossmoor, Illinois 60422

ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING

L. R. ) ) Student ) ) Case No. 3002 vs. ) ) TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District ) CAROLYN ANN SMARON, Hearing Officer

CLARIFICATION OF DECISION

Counsel for the parents has requested clarification of the Decision and Order.

1. Counsel cites the following statement which appeared on page 45 of the Decision and Order:

It would appear that the parents are focused on the August, 2003 IEP meetings in their contention that the school district failed to formulate and implement a cohesive, effective behavior intervention plan (BIP), failed to address all of the student's needs, failed to provide the student with a transition or extended school year (ESY) services, and failed to provide her with appropriate related service. However, the IEP which was implemented in Spring 2003 was the IEP developed in August 2002 as amended by the provisions of the Settlement Agreement in November, 2002.

Counsel for the parents inquires if the above statement implies that implementation of the August 2002 IEP was barred by the Settlement Agreement. Counsel for the parent inquires if the above statement implies that the Settlement Agreement prospectively supercedes IDEA or the obligation to provide FAPE.

CLARIFICATION: The Decision and Order speak for themselves in the finding that the student's behavior in the placement at Conant High School actively interfered with all attempts to provide educational benefit to the student and that nothing of any educational benefit occurred at Conant High School in Spring, 2003 and Fall, 2003. Within the November, 2002 Settlement Agreement the parties themselves agreed to disagree: the school district remained convinced that the student's injurious behavior needed to be reduced incrementally in a self-contained program and the parents remained convinced that the school district had failed to adequately respond to the student's behavior during her freshman year. The parties assembled a panel of experts and the school district

hired Jean Mansfield Link. The result: no educational benefit. Counsel for the parents misses the point: it was not the implementation but the placement.

2. Counsel cites the following statement (bold words) which appeared on

page 46 of the Decision and Order: Although there has been no issue raised as to the IEP which was in place during the student's freshman year, behavioral data suggested that the student spent more than 50% of her day within the work room -with her behavior vacillating between cooperative and compliant to agitated and noncompliant. During the second semester of her freshman year, the student was absent a total of sixteen days, due to family vacations, illness, out-of-school suspensions, and the testing at the University of Chicago. The student's last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the student's behavior and the creation of a behavior intervention plan, the student's behavior clearly interfered with the ability of the school district to provide an education to the student. It is clear that the situation was not working!

Counsel for the parents inquires as to the basis for incorporating "alleged" events from prior to the Settlement Agreement in the Order. CLARIFICATION: The Decision and Order speak for themselves in the finding that the events set forth above were contained within the Individual Education Plan developed in August 2002 and provided a context for the actions of the parties subsequent thereto. The events themselves happened - the absences, the nasal fractures, the creation of a "workroom", etc. The parties disagree as to the import of those events.

3. Counsel for the parents requests clarification of the conclusion that the parents had a meaningful opportunity to participate in the November 5, 2003 IEP meeting in light of the testimony indicating that Dr. Malito and Dr. Gates had already made the placement decision prior to the IEP meeting.

CLARIFICATION: No clarification is permitted as counsel is asking the hearing officer to reconsider a clear finding that the evidence was overwhelming that the parents were maximally involved in the IEP process, its implementation and modifications.

4. Counsel for the parents requests clarification of the Order directing the school district to place the student in a classroom similar to Lake Park High School in light of testimony that Lake Park High School is full and and then questions what the school district will do if there are "...no other appropriate and geographically accessible programs offered by the District". Counsel for the school district joins in the request for clarification requesting a separate Order that the parents sign Exchange/Release of Confidential School Records and Release of Mental Health Information in the form submitted to counsel for the parents on August 26, 2004.

AMENDED DECISION AND ORDER

IN IS HEREBY ORDERED that on or before fifteen (15) days of date of this decision, the school district shall implement the placement contained within the November 5, 2003 Individual Education Plan by placing this child in a highly structured, self-contained setting that could develop and operate an intensive behavior intervention for aggressive and self-injurious behavior while also addressing fundamental skills such as basic compliance training. The self-contained program must have a very strong behavioral training capability. A placement similar to the multiple needs classrooms operated at NDSEC at Lake Park High School would be preferable. Within that placement, the staff shall re-assess the student's IEP, conduct a functional assessment of the student's current behavior and develop an appropriate behavior intervention plan. Once the behavior intervention plan has been developed and has been operational for an appropriate period of time, the school district shall proceed with an assessment of the student's abilities so that appropriate educational programming can commence. The parents are ordered to execute any and all Exchange/Release of Confidential School Records and Release of Mental Health Information forms to allow release of information to proposed placements within ten (10) days of date of this Order and in general, cooperate in the placement process.

The school district shall submit proof of compliance with this Clarification of

Decision and Amended Decision and Order to the Illinois State Board of Education, Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 within thirty (30) days of the date of this order.

RIGHT TO FILE A CIVIL ACTION

This decision and clarification shall be binding upon the parties unless a civil

action is commenced. Any party to this hearing aggrieved by this decision has the right to commence a civil action with respect to the issues presented in the hearing. Pursuant to ILCS 5/14-8.01 (i), that civil action shall be brought in any court of competent jurisdiction within 120 days after a copy of this decision was mailed to a party.

ISSUED this 29th day of August, 2004.

____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer

CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Clarification of Decision and

Order was placed in the U.S. Mail at Flossmoor, Illinois, via certified mail return receipt requested, postage prepaid and directed to:

Mr. Matthew D. Cohen

Attorney at Law 225 West Washington Street #2300

Chicago, IL 60606

Mr. Brooke R. Whitted Whitted & Cleary Attorneys at Law

3000 Dundee Road #303 Northbrook, IL 60062

Dr. Elizabeth Brooks

Due Process Coordinator Illinois State Board of Education

100 North First Street Springfield, IL 62777-0001

on August 30, 2004.

CAROLYN ANN SMARON Attorney at Law 635 Argyle Avenue Flossmoor, Illinois 60422 708 798 0966 (facsimile 708 798 3430)

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