VIRGINIA:
SPECIAL EDUCATION APPEAL

LOUDOUN COUNTY PUBLIC SCHOOLS
Appellants

Versus

 

JOSEPH AND ROXANNA HARTMANN
Respondent

 

IN RE: MARK HARTMANN

 

POST-HEARNING BRIEF OF JOSEPH AND ROXANNA HARTMANN

 

 

ARGUMENT

I.

MARK HARTMANN WAS SUCCESSFULLY EDUCATED IN A REGULAR CLASSROOM.

A review of the evidence before the hearing officer establishes that Mark Hartmann flourished in a properly implemented inclusion program. In comparison the more traditional programs seemed to have little effect. The very reason for the Hartmann's push to have Mark included in the regular classroom was the failure of the self-contained programs. Prior to Mark's placement in the regular classroom Mark spent several years in special schools and one year in a program during which he spent one-half day in a self­ contained setting and one-half day in the regular kindergarten. The school system proposes to implement a program which is quite similar to that which Mark experienced in kindergarten. Ms. Truax testified that if she had to do it allover again she would have had Mark included in kindergarten full-time, rather than. the split day program. It was her opinion that the time Mark spent in a classroom with only children with autism was counter-productive. (Tr.8/15, 174-76.)

All of the professionals involved with Mark's educational program at Butterfield felt that Mark progressed while in the regular classroom. He made both academic gains and developed socially. (Tr.8/15, 215, 232-33, HX.5,8,10,11.) One example of his progress was Mark's ability to travel by himself wi thin the school. (Tr.8/15, 188-89.) Mark's success in first grade was observed by both the Butterfield staff and by professionals from his previous placement at Little Friends. (Hx.24.) Mary Kearney, Director of Special Education for the school system also agreed that Mark's experience at Butterfield was successful. (Tr.10/27, p.315.) This success is, in of itself, sufficient proof that he can derive educational benefit from the regular classroom.

II.

THE SCHOOL SYSTEM FAILED TO USE APPROPRIATE SUPPLEMENTAL AIDS AND SERVICES WHICH WOULD PERMIT MARK TO BENEFIT FROM AN EDUCATION IN THE REGULAR CLASSROOM.

The Individuals with Disabilities Education Act (hereinafter "IDEA") was passed by Congress to ensure that all disabled children receive free appropriate public education. Congress placed great emphasis on the need to end the separation of children. with disabilities from their non-disabled peers. In order to achieve this goal, receipt of federal funds was conditioned on a showing by state and local education agencies that procedures were in place to

assure that to the maximum extent appropriate...handicapped children are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular classroom occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. Section 1412(5) (B).1

Because the Loudoun County Public Schools (hereinafter , "school system") seek to remove Mark Hartmann from his regular classroom they must establish that Mark's education can not be achieved satisfactorily in the regular classroom with the use of supplemental aids and services. Since we know that Mark can successfully be educated in a regular classroom, the real question posed by this case is why the Loudoun School System failed Mark. The answer is not mysterious; the school system failed to implement an appropriate inclusion program such as that of the Butterfield School or those of the Montgomery County, Virginia inclusion program as described by Kenna Colley.

The case of Oberti v. Board of Education, 995 F. 2d 1204, 1222 (3rd Cir.1993) underscores the duty of the school system to use supplemental services before they can remove a child from the regular classroom. In Oberti, the services which the court found inadequate are strikingly similar to this case. The LEA in Oberti, failed in two major areas: 1) curriculum modification 2 and 2) behavioral supports. In over turning the administrative decision the District Court found that the ALJ's findings

were largely and improperly based upon Rafael's behavior problems in the developmental kindergarten, as well as upon his intellectual limitations, without proper consideration of the inadequate level of supplementary aids and services provided by the School District. Oberti II, 801 F. Supp. at 1404.3

In the case before you the inadequacies of the supplemental aids and services provided by the school system were established during the hearing and are detailed below.

Fact One: No special education teacher was provided Mark from September to the last week of February.

It is clear from the record and the testimony of the school system's witnesses that no special education teacher was assigned to work with Mark on a regular basis until the last week of February 1994 when Mrs. McCollough was brought onto the team. (Lx.20.) Until that time the primary guidance on the day to day level rested in the hands of Carolyn Clement, a speech and language pathologist, who is not a special education teacher, had no experience working with children with autism, and no experience in developing or guiding an inclusion program for other handicapped children. In fact, Mrs. Clement, Mark's case manager, had not worked directly with any child for the five years previous to her work with Mark. (Tr. 9/26, pp.103-110.)

While Mary Kearney and Frank Johnson would qualify as special education teachers, they are both administrators not classroom teachers,- and neither provided Mark's educational team with daily assistance. Mrs. Kearney's was not permitted to provide direct assistance to the Ashburn staff after December 8th. (Tr.10/26, p.311). Mr. Johnson's involvement with Mark's program prior to January seems to have been minimal. He testified as follows:

Q Did your intensity of working with [Mark's) team change as of January?

A Yes, because I -- I was not -- we didn't have team meetings that I was involved in prior to that

Q You said that you did not participate in the team meetings. They called you on the phone.

A Well, we didn't have a team per se of people that were working and trying to didn't I would say from January on, We had a group of people that were working and trying to solve the problem. We called ourselves ateam... (Tr.9/26, p.314.)

The school system provided no reasonable explanation for why Mark was not assigned a special education teacher for the first six months of school. It is noteworthy that Mrs. McCollough' s job was to provide "resource" services to other disabled children who were placed in the regular classroom. She stated that she provided these services to many children whose handicapping conditions were not as severe as Mark's. (Tr. 9/27, p.99, lines 8-21.) Mrs. McCollough felt that her assistance had been helpful and that it would have been of value to Mark's teacher had she been brought on board from the beginning. (Tr. 9/27, p.103-104). It is inexplicable that the school system would fail to provide these services to Mark from day one.

Fact Two: No member of Mark's educational team had significant experience working with children with autism.

As Carolyn Clement notes in Lx. 27, the staff at Ashburn was new to autism. (See also Tr. 8/15, p.107, lines 1-8; Tr. 9/26, p.p. 110, lines 4-9.) For guidance the Ashburn personnel looked to Frank Johnson. Unfortunately, Mr. Johnson's experience with children with autism was extremely limited, consisting of working occasionally with ten children over a ten year period during the 1970's. Mr. Johnson stated that he had taken no course in autism, was not endorsed in the area of profound disabilities or mental retardation and had never taught a class of students with autism. (Tr.315, lines 18-22.) While he has general supervisory responsibility for the autistic program at Leesburg, it was just one of fourteen schools over which he has supervisory responsibility. (Tr.9/26, 304, lines 18-19.) Though asked to consult on a behavioral plan for Mark, Mr. Johnson does not prepare behavioral plans for the children in the Leesburg autism class. (Tr.9/26, 317, lines 21-23.) Nor did Mrs. McCollough have any significant experience with children with autism, despite the fact that the March IEP calls for an autism resource teacher. (Lx.45.; Tr.10/27, p.238, 1.11-23.)4 No member of the educational team had special education endorsements in the area of severe and profound disabili ties. Yet that endorsement is the category which generally includes the disability of autism. (Tr.9/28, p.4)

Mrs. McCollough testified that she had experience with only three children with autism. One she worked with for a year and the other two during summer school. (Tr. 9/27; p.93, lines 13-23.) She is not certified in the area of profound disabilities or mental retardation. (Tr.58, lines 1-3.)

Fact Three: No permanent member of Mark's educational team had experience working with severely disabled children in an inclusion program.

While the school system participated in the statewide System Change Project, no permanent member of Mark's educational team had been involved with that project. Mrs. Johnson, Mrs. McDonald and Ms. Clement all stated that they had not had any experience and only minimal training in the inclusion model. (Tr. 8/15, p.107, 1. 6-19; Tr. 9/26, pp.110-111, 207-211.) Mrs. McCollough, while she provided services to disabled children in a variety of settings, did not testify to having any particular expertise with the inclusion model. She did not testify to participating in any inclusion workshops nor does she make any reference in her resume to having training or experience with inclusion. Nor did Mr. Johnson have experience working with students in an inciusive setting. In fact, Mr. Johnson stated that he had "not worked directly with students since coming to Loudoun ...'" (Tr-. 9/26, p.298, 1.19-20; p.302, 1.15-17, p.345, 1.10-22.)

However, it must be noted that Mary Kearney, the Director of Special Education, was involved in that project. Unfortunately, Mrs. Kearney, who appeared interested and concerned with making Mark's year successful, was removed from Mark's educational team by her boss, Ned Waterhouse, who we believe was opposed to Mark's placement. (Tr.9/27, p.170; Tr. 10/27, p.)

Fact Four: The school system failed to adequately train its personnel with respect to the process of inclusion or the nature of autism.

Given the lack of experience of Mark's educational team, one would suppose that the school system would make every effort to fully train their employees with respect to Mark's disability and on "inclusion" as a model for delivering educational services to Mark. Unfortunately, the school system training efforts were totally inadequate. With respect to "inclusion" the training they did provide consisted of a one day workshop which served only as an general introduction to inclusion. This was than supplemented by a one hour in service training. (Tr.8/15, p.l07i 9/26, pp.ll0-lll, 207-208.) The amount of training provided the school personnel who worked with Mark was so minimal that it could not have had any positive effect on those who participated. Nothing exemplifies the school system's failure in this regard better than the testimony of Mark's teacher Diane Johnson, who after a year of working with Mark still seemed confused about the objectives of the inclusion program for Mark. (Tr.8115, pp.127-130.)

As with inclusion, there was no consistent or organized effort to educate the school personnel about autism. Even after a year of working with Mark on a daily basis Ms. Clement was unable to to define autism and pervasive developmental disability and couldn't reasonably distinguish autism from mental retardation. (Tr.9/27, pp.l07,115-116.) The sum total of the school's effort to provide training to their employees consisted on autism was a short training with Julie Hunt on facilitated communication. As many of Mark's educational team commented they often turned to the Hartmann's for suggestions and resources.

Compare the training efforts made by the school system to those of the Butterfield School personnel. Mrs. Truax stated that prior to Mark's arrival they participated in a three day conference, consulted with several experts, and visited Mark's pre­ school placement. This training did not stop once Mark's program got under way. Several local experts were consulied on a regular basis and training was provided in facilitated communication, autism and inclusion several times over the year. It is important to note that not only did Mark's teacher receive this training, but so did Mrs. Mrazek, his aid. (Tr.8/15, pp.166-168, 182, 209-211, 225-228. )5

It must be concluded that the school system failed to provide the personnel involved with Mark with the training necessary to provide Mark with an appropriate educational program.

Fact Five: The school system implemented no system to appropriately modify the curriculum.

The successful inclusion of handicapped children in the regular classroom is in great part dependent upon the appropriate modification of the regular curriculum. As Kenna Colley made perfectly clear, curriculum modification is one of her primary roles. (Tr.9/28, pp.7,17-l7,27-28.)6 Under the inclusion models described by Ms. Colley and Ms. Malatchi, there is no expectation that the regular classroom teacher be the person primarily responsible for curriculum modification. (Tr.9/28, p.105.) It is not rational to expect a teacher with no experience with autism or inclusion to be able to modify curriculum. Yet, this was precisely what the school system expected of Diane Johnson, last year, and Mark's teacher this year.7

It is evident from the testimony of Ms. Malatchi, Ms. Colley, and Ms. Truax that the key component of any inclusion program for a severely disabled child such as Mark is the inclusion specialist (facilitator). Mark's teacher should have been provided with the services of a inclusion specialist. Given the failure of the school system to provide this key supplemental service, it is easy to understand the frustration of Mark's teachers. Clearly their negative opinions were colored by their experience with a wholly inadequate inclusion program. Given their experience, the opinions of the professional working with Mark at Ashburn as to the appropriateness of an inclusion program can not be given much weight.

Fact Six: The school system failed to implement an appropriate behavior plan.

For many children with autism, including Mark, an appropriate behavioral support plan can be essential to learning. The behaviors which Mark demonstrated during second grade were not new. But they had been successfully diminished during first grade. The reason for this success was in great part due to a well planned educational program and the school personnel who were appropriately trained. Mrs. Truax testified that whenever possible she would let Mark's teacher and aid know in advance of any school wide changes which might effect Mark. If, for instance, a fire drill was scheduled, Mrs. Truax would give advance notice to Mark's teacher so that they could prepare him and thus avoid problems associated with unexpected transitions. (Tr.8/1S, pp.221-222.) This is a perfect example of a positive behavioral support designed to reduce the circumstances in which Mark's difficulties around transitions would arise.8

In comparison, the school system never grasped the concept of positive behavioral supports. In fact, they had no plan to address Mark's behavioral problems whatsoever until January 1994. While the school system claimed to have an unwritten plan, it appeared to consist only of several strategies suggested to them by Mr. and Mrs. Hartmann, ie. "hands down". As testified to by Kenna Colley, Jamie Ruppmann, Cathy Thorton and Audrey Russo the behavioral program they finally committed to writing was from its very inception ill-conceived, antiquated and poorly implemented. (Tr.9/28, Colley, p.S4, 1.16-18; Thorton, pp.162-163; Tr.10/27, p.102-10S.) Because they kept no data on when and how the program was being implemented there is no way to judge its efficacy. It is just as likely that this program created more behavioral problems then it resolved. (Tr.10/27, pp.103-4.)9

Audrey Russo outlined a coherent and now well settled approach to "problem" behaviors. (Tr.10//27, pp.71-74.) The concept of positive Behavioral Supports assumes first, that problem behaviors, particularly for a child who is non-verbal, are attempts to communicate; and second, that it is the responsibility of those involved with children such as Mark to try to understand what is being communicated. (Tr.10/27, pp.77-80.) When Mark screeches is he happy or sad, frustrated or content, lonely or in need of solitude? These questions can be answered and once answered the screech becomes understandable and not a "problem behavior." When we know what Mark is trying to communicate we may be able to adjust his environment in a positive way. The end result will be less "problem" behaviors and better communication skills.

Ms. Russo demonstrated through a series of materials how an educational team can organize its approach to "problem" behavior through the collection of a wide variety of data. (Tr .10/27, pp.86-98.) Frank Johnson agreed with the approach described by Ms. Russo. He suggested that they had adopted a very similar approach, although they may have used different forms. (10/27, p.330.) With all due respect, this contention is preposterous. There is absolutely nothing in the record or testimony which even hints at a systematic approach to behavior management. Certainly, the one page memo written in January of 1994, would not qualify as a positive behavioral support. The only other documentation which pertains to Mark's behavior are the daily data sheets which purport to collect information about Mark's behavior. (Hx.51.) It appears that the school system made no attempt to use this information to help Mark. It is likely that the school system intended to use this data to show how much of a "problem" Mark presented. Certainly, they did not use it to devise the types of positive behavioral supports which would have made Mark's second grade experience a more positive one.

One other factor must be underscored. As discussed above, the school system failed to appropriately modify Mark's educational curriculum. The school system's witnesses stated that mark became a "management" while workin one-on-one in academics. (Tr.9/26, p.183.) They suggested that if Mark were left alone he would not present these problems. We believe that most often the behavioral problems experienced by the school system resulted from poorly modified curriculum which frustrated Mark. Had they properly modified the curriculum much of this behavior would have been eliminated.

Fact Seven: The school system failed to provide appropriate related services.

In addition to the totally inadequate job of with respect to the supplementary services of behavior management and curriculum modification, the school system failed to provide appropriate related services. As described above, the school system made no effort to develop an adaptive physical education program for Mark. Yet, this was called for in Mark's May 1993.IEP. ", With respect to occupational therapy Mark's May, 1993 IEP also called for sensory integration therapy. (Hx. 18.) 10 This therapy had been used successfully with Mark. Yet when the Hartmann's requested that these services be provided Mr. Davis brushed it off because he would be uncomfortable with that being done in school. (Tr.9/27, p.292.) As with adaptive P.E. there was no effort to meet Mark's previously identified needs.11

Fact Eight: The school system failed to use public and private resources available to them to provide Mark with an appropriate educational program.

From the very beginning of Mark's attendance at Ashburn it was obvious to those involved that they would need assistance from the professional community. In an attempt to get Mark's program going the right track, Mary Kearney, employed the services of Jamie Ruppmann. Mrs. Ruppmann had just begun to consult when Mrs. Kearney was removed from Mark's team. From that point on Mrs. Ruppmann's services were no longer used by the school system. At about the same time, the school system employed the services of Gail Mayfield." Since there was no report prepared by her at that time and no evidence as to what feedback she provided, it must be inferred that the school system had no real interest in using her services. When they did employ Mrs. Mayfield to prepare a report it was after the May 31st IEP meeting which called for Mark's change of placement and clearly for the purpose of supporting the school system's position that Mark should be removed from his placement. (Lx.60.)

The failure of the school system to employ a consultant is very difficult to understand given the testimony of Frank Johnson. When asked about their use of Gail Mayfield, Frank Johnson stated that he had "intended to use her heavily in the program from the start .. (emphasis added) ... but "she's a hard person to schedule ..... (Tr.9/26, p.339, 1.12-18.) Obviously, he was aware from the very beginning of the school year that they needed to consult with an expert in autism on a regular basis. The failure of the school system to insure that this "building block" was in place is inexcusable.13

The use of Julie Hunt as consultant was certainly an appropriate step. Unfortunately, the school system's use of Ms. Hunt was all too limited. Mrs. Clement was clearly having difficulty working with Mark, yet after the initial training with Ms. Hunt she never again sought her assistance and training. (Tr.9/26, 136-137.) It must be noted that when Mrs. Clement began to believe that facilitated communication was not appropriate to be used with Mark, she did not talk to Ms. Hunt or anyone else experienced in using facilitated communication. When she did consult with someone it was with someone who was not a supporter of facilitated communication. (Tr.9/26, p.12)

Kenna Colley and Jamie Ruppmann testified as to the existence of the Virginia Technical Assistance Centers (TACs) which were available to assist any school system which asked for help. (Tr.9/28, pp.30-31.) Yet the school system did not avail themselves of this resource.14 In addition the existence of the Virginia Institute for Developmental Disabilities (VIDD) was known to the school system. In fact, as Audrey Russo testified the school system participated in a rather extensive training program run by VIDD. (Tr.l0/27, pp.42-43, p.74.)

Even more curious was and is the failure of the school system to utilize its own resources. With the exception of Mary Kearney no school system staff involved in the systems change project was asked to participate in Mark's program. Nor did they use any of the personnel who had experience with the self-contained program for children with autism at Leesburg Elementary School. Why, for instance, did the school system use Ms. Clement as Mark's Speech and Language therapist and not an experienced therapist who had worked with the autistic program at Leesburg? Having selected Mrs. Clement, why didn't she consult with the Speech and Language therapist from the Leesburg program? And why did the Ashburn teachers consult with Frank Johnson to develop a behavior program when the school system had sent Mary Kearney, Dee Pollack and Rick Berry to an intensive program on positive behavioral supports? l5 (Hx.54.)

MARK'S SOCIAL AND ACADEMIC ABILITIES ARE NOT RELEVANT TO HIS PLACEMENT.

The school system made much of Mark's inability to function on the level of his third grade peers. Their witnesses went through a litany of differences, believing that these differences were sufficient to remove Mark from the regular classroom. The school system saw Mark as unable to communicate, unable to interact, and unable to care for himself. They characterized Mark as being mentally retarded. (Tr.9/26, p.116,1.3-4, pp.252-53.) The evidence presented by the parents suggests a very different child. Previous non-verbal testing suggested that his abilities fell within the average range of intelligence. (Hx.85,86.) Cathy Thorton, who both tutored and tested him, concluded that he was not mentally retarded. (Tr.9/28, p.170.) Kenna Colley observed Mark as intelligent. She testified that he was able to use the CD-Rom on the computer which she believed would be difficult for a child with mental retardation. (Tr.9/28, p.lll-l2.) Mrs. Hartmann also described Mark's ability to access the computer, as well as his ability to hookup the VCR to the TV. (Tr.l0/27, p.270-72.) Mr. and Mrs. Hartmann, Cathy Thorton (Mark's tutor), Mrs. Ruppmann and Ms. Colley the principal and aid from the Butterfield School all saw Mark as a child with positive attributes and capabilities.

Although much time was spent during the hearing with respect to Mark's abilities it is not necessary to determine precisely the level of Mark's ability and potential. Those question are truly not at issue. Children allover this country and in Canada are being included in the regular classroom regardless of their academic and social ability. Anne Malatchi, Kenna Colley and Sandra Truax all testified that discrepancies between the disabled child and their non-disabled peers do not justify removing disabled children from the classroom. The following excerpt from Ms. Colley testimony best represents this approach:

Q Do you have any criteria in terms of whether to include a child or not based on their ability, cognitive ability, in relationship to the children that they're going to be placed with?
A No.

Q Why not?
A Because it's just not really necessary. Being on grade level does not mean -- is not what inclusion is all about. We can include children in lessons to learn other things on their IEP whether it's communication, socialization, attending, following directions, identifying certain specific concepts. They could work on maybe six IEP objectives in a general ed. lesson that still meets their IEP objectives, but it may not be some of the same objectives as a general ed student sitting next to them.

Q Well, if you're doing everything differently for them, what's the goal? What's the purpose of having them included in that classroom?
A It's not really different. It's just adapted. That's a big difference.

Q You're adapting the curriculum, but what would be the goals of having the children in the regular classroom?
A The goals would be that number one, it reflects real life. They're going to have to cope in a world that we live in with ten percent of the population in this country approximately has disabilities so the other ninety percent do not. And this is the world we live in every day. And these children need to be a alongside people that they're going to live in the same town with, that they're going to go to school with, and learn from them, and learn how to interact with them. And they could learn -- all the prerequisites that children learn in elementary school are prerequisites to adult jobs. I mean we learn our social skills there. We learn our interactive skills there. We learn tolerating other people. We learn cooperating with people. We learn verbal skills. We learn waiting. I mean you have to wait in the lunch line, or you have to wait in a group, in a cooperative group to be called on. I mean these are all skills that these children are going to need in life that -- in language rich environments that they can, you know, learn in a general ed classroom. If they have specific skills that are very specific to them, learning how to use the bathroom, wash hands, mealtime skills, those can be worked on too at real natural times during the day. (Tr.9/28, pp.18-20.)

Mark's success at the Butterfield leads to the inescapable conclusion that indeed, he can and should be educated in the regular classroom. The testimony of the Hartmann's witnesses demonstrated how the School System can reorganize itself and provide Mark with the same opportunity for success at the Asburn Elementary School.

IV.

MARK'S PRESENCE IN THE CLASSROOM WAS NOT DISRUPTIVE, RATHER HE HAD A POSITIVE EFFECT ON HIS CLASSMATES.

When asked "What effect did Mark's behaviors have on the other students in the class?" Mark's teacher, Mrs. Johnson, answered

The children loved Mark. They were very protective of him. They took care of him. They guided him. And they were honestly very fond of him. They learned that -- the atmosphere in the classroom that I tried to portray was that we were very lucky to have a special child like Mark and that our classroom was the only one in the entire county that had a special child like Mark so we were going to learn wonderful things about special children and the differences and the similarities.

So they had a wonderful attitude, a very loving and kind attitude to Mark, and protective. They would often explain to the children in the other classes Mark -- Mark is special when we were outside for recess or wi th other classes. They learned quickly that when Mark's screeching or noise level got too high, they would all say quiet voice, Mark. We're working. Quiet voice. (Tr.8/l5, p.31.)

The positive nature of Mark's presence is confirmed by many of the answers to the questionnaires about her son's experience. For instance, one parent stated

He would always tell me about Mark and the things that would make him happy. He was thrilled to see any of Mark's accomplishments and would comment about them quite frequently. He loved to see Mark laugh. (Hx.58, Doc.9.)

In answer to the question "Do you want your child to share the same classroom with Mark next year?", the parent stated, "We would welcome the idea wholeheartedly." (Hx.58, Doc.9.) Another parent stated of her daughter's experience "I think that this experience gave her a better appreciation of how lucky she is and developed more compassion for children with disabilities." (Hx.58, Doc.lO.)

Yet, the school system argues that

Mark's presence is disruptive to the regular classroom because the instructor has to spend so much time with him that it deprives the other students of educational benefit. Further, the only way that Mark interacts with the other students is by disturbing and disrupting them by pinching, hitting or kicking them or by making noises in the classroom. (School System's Memorandum of Law, at p.9)

There is much in the record that suggests that this assertion is greatly exaggerated. Examine for instance, the comments made by the parents of Mark's classmates. One parent writes

"At first I was surprised that [Mark] was there, and my daughter's early comments about him worried me that Mark might disrupt the class. But I soon quit worrying about that. My daughter adjusted and he just became part of the class to her... She [my daughter] mentioned once or twice that the sounds Mark makes occasionally disrupted her concentration, but the times I was in the classroom, I observed that the class got along quite well with him there." (Hx.58, Doc.3.)

Another parent wrote about her daughter's experience "She did comment that there were occasional vocal outbursts, but that it did not interfere with the learning environment." (Hx.58, Doc.7.)

The school system implies that there is an issue of safety in the classroom. We believe this assertion to be greatly exaggerated. However, what evidence there is of pinching and bruising was directed primarily at staff not students. (Tr.9/26, p.183.) There is no evidence to suggest that moving Mark to a self-contained classroom would do anything to lessen the potential for such problems. Since staff will be working with Mark in either setting, they will be exposed to the same potential for being "pinched". In fact, we believe that the self-contained classroom will be more likely to cause problem behavior than the other way around."

On the other hand, the incidents involving other students were minimal in number and significance. During the entire year there were no incidents that required any type of first aid let alone medical care. In fact, Mrs. Johnson recalled only one incident which required that she call another student's parents. (Tr.8/l5, p.135.) To this one incident Mr. Hartmann testified that he received a call from the child's parent who said that her child was partly responsible for the incident and that they wanted to reassure them that no harm was done. (Tr.9/27, p.311.). Since there is no safety issue with respect to Mark's classmates the issue becomes irrelevant for the purposes of this hearing.16

As Ms. Colley pointed out handicapped children are often viewed as if under a microscope. (Tr.9/28, pp.56-57.) Mark's behavior was magnified because it was being focused upon. There is no proof that Mark's behavior was outside the range of behaviors which are normally experienced in elementary schools. Ms. Colley, Ms. Truax and Ms. Russo all testified that "problem" behavior occurs on a regular basis in elementary school with non-disabled children. (Tr.9/28, p.81,1.12-22.) Even Mr. Johnson recognized this fact. (Tr.9/26, pp.308-9.) If, we apply the normal burden of proof, the school system has failed to prove that Mark's "problem" behaviors impacted on his class.

It must also be stressed that the school system failed to employ a systematic approach to Mark's "problem" behaviors. There is every likelihood that the problems Mark did display would be significantly reduced with an appropriate system of positive behavioral supports coupled with appropriate modifications to the curriculum presented to Mark. In Oberti v. Board of Education, 995 F. 2d 1204, 1222 (3rd Cir.1993) the Court found that behavior problems encountered by the school system could not be used as a rationale for removing the child from the regular classroom where the school had failed to implement an appropriate behavioral plan.

The school system has also argued that the sounds Mark made which they refer to as "screaming" or "screeching" also had a negative impact on his classmates. Obviously, the sounds Mark makes can not hurt anyone, but they can be distracting. However, during cross-examination Mrs. Johnson was asked if the other children or their parent's ever complain about Mark's presence in the classroom. She answered "No". In fact, she stated that the children when distracted by Mark's sound the children learned how to deal with the situation by saying to Mark "quiet voice". They were then able to get back on task. (Tr.8/15, p.136.) Ms. Colley testified that in her experience that vocalizations, such as Mark's, simply become background noise and the students "get very used to it". (Tr.9/28, p.57-58.)

With respect to the attention Mark required of his teacher to the detriment of the other students, no evidence was offered to show that the class learned less or tested below that of the other second grade classes. If we are to require proof it should be something more than pure speculation on the part of Mrs. Johnson. One simple approach would be to compare the average results of Mark's class to that of average for other second grade classrooms. Such proof has not been offered. In fact the only relevant statement on this issue was the testimony of Mrs Johnson that she felt that "two children, in particular, struggled through the year that I think had I made more time with them I could have... made them do better." (Tr.134, 8/15/94.) This of course, is speculation. But even if we accept Mrs. Johnson assertion it would not be sufficient to remove Mark from the classroom. If two children did need additional attention an appropriately designed inclusion program would have remedied the situation.l7

V.

THE SCHOOL SYSTEM FAILED TO ESTABLISH THAT THE PLACEMENT THEY PROPOSED WAS APPROPRIATE.

As detailed in the Hartmann's pre-hearing brief the school system has the burden of showing that the proposed change in placement will provide Mark with a free appropriate public education. While the school system spent much time trying to show that Mark was not benefiting from his present placement, they made little effort to show why a self-contained program would be appropriate. The school system assumes if the regular classroom program is not appropriate then a self-contained setting would be. However, there is neither a legal nor factual basis for such a presumption. On cross examination, Mary Kearney, had to admit that the school system had no data to support the contention that the self-contained classroom was successful in meeting the IEP goals of the students in the classroom. 18 (Tr.9/27, p.; 10/26, p.305-306.) Mrs. Colley stated that she was unaware of any studies which established that the self-contained classroom was an appropriate educational setting. (Tr.9/2B, p.124.) Based on her own experience in the both the self-contained and inclusion programs she found the inclusion model to be superior to the self­ contained model. (Tr.9/2B, pp.50-52.)

Though there is no data to support the efficacy of the Leesburg program, Ms. Kearney stated that they had brought in people to look at the Leesburg program. One being Gail Mayfield, who, though listed as a witness, was not called and the other Jamie Ruppmann.l9 Clearly, Ms. Kearney felt that Mrs. Ruppmann had experience and expertise with respect to autism and inclusion. (Tr.10/27, p.309, 1.12-15.) Given the school system's reliance on Mrs. Ruppmann her opinion must be accorded great weight. She testified that given the significant differences of each child in the classroom and the need to attend to the individual needs of the children that she felt the teacher was overwhelmed. She stated that teacher "indicated to me that with the two of them [teacher and aid] and the five kids, it was extremely difficult to have coverage. " Mrs Ruppmann stated that one child was left unattended roaming the room for twenty to twenty-five minutes. She said "frankly, [I] was not happy with what I saw. The room was not clean. The room was disorderly just in the sense of looking neglected. I felt that the teacher seemed dispirited ... " with respect to Mark, Mrs. Ruppmann stated

Q Okay. And how do you feel Mark -- what do you feel Mark's experience would be in that setting?
A I believe that Mark would move from engagement with the adult engaging him in some kind of task to disengagement and pretty much at his own devices to do a repetitive activity, swing in the cargo net, look at a computer program, roam the room until an adult had the time to engage him again in a small group or individual activity.

Q In terms of -- did you see any social programming or social skills being developed?
A No. (Please see Tr.9/27, pp.189-195.)

Mrs. Ruppmann concluded that the goals and objectives of the proposed IEP could be implemented in the inclusive setting where Mark's needs would be better met. (Tr.9/27, pp.203, 217.)

Even Mrs. Kearney did not seem to be convinced that it was necessary to change Mark's placement. While she testified that the proposed IEP was appropriate she was not asked on direct-examination whether she felt that Mark could not be educated in the regular classroom. (Tr.10/27, pp.294-95.) However, on cross­ examination she was asked whether she was ready to give up on including Mark in the regular classroom. She answered "No, I'm not ready to." (Tr.10/27, p.295.) When asked if she felt that the program at Ashburn was successful she answered "Yes." When asked "Are you telling me that Loudoun County is incapable of including Mark in the regular classroom?" she answered. "No, I am not saying that." (Tr.10/27, pp.315-16.)

The decision to move Mark to the Leesburg class for children with autism was not made by an IEP team qualified to decide the appropriateness of a placement for Mark. Not one member of the IEP team worked in the Leesburg program. Several members had little or no knowledge of the Leesburg program. Diane Johnson's only knowledge of the program was a two hour visit once in January. (Tr.8/15, p.149.) Given her lack of knowledge of autism, her opinion as to the appropriateness of the Leesburg program is simply not credible evidence. Mrs. Johnson simply does not possess the training or knowledge necessary to make an informed decision concerning what educational placement is appropriate for Mark.20 The same must be said about Carolyn Clement, Edward Davis, Laurie McDonald, Virginia McCollough and Frank Johnson. Not one of those persons is knowledgeable enough to make an informed decision as to the needs of Mark Hartmann.

To a large degree what the Hartmann's are being confronted with in this hearing is a totally unsubstantiated belief that the self-contained program is educationally beneficial. It is not sufficient to presume this, it must be proven. On this point the school system has offered very little. They did not produce one witness who would even remotely qualify as an expert in autism. They did not present a witness who was endorsed or certified the area of severe and profound handicaps. They offered no witness who had any experience working in an inclusion program. They did not offer a witness who had even taught in a self-contained classroom for autistic children. In fact, if you combine the all of the experience of the school system's witness into one person you would have a witness with almost no experience with children with autistism and no experience with the inclusion model.21

On the other hand, the Hartmann's presented four knowledgeable witnesses with a variety of experience with inclusion and autism, each whom concluded that Mark should be educated in the regular classroom. (Tr.9/27,p.203; 9/28, p.63,64.) Cathy Thorton, who has tutored Mark since July, had five years of experience in self­ contained classrooms for children with autism. She concluded that to put Mark in a self-contained classroom would be going backward and recommended against such a move. (Tr.9/28, pp.167-69.)

The only evidence that was introduced which on its face has credibility is the report from Gail Mayfield. (Lx. 60.) In weighing the value of this report several factors must be taken into consideration. First, Mrs. Mayfield was brought in after the fact to support a decision that had already been made. Secondly, Kenna Colley, when questioned as to the expertise of Gail Mayfield, testified that Ms. Mayfield was of no value to the Montgomery County inclusion program. As a result they decided to stop using her services. (Tr.9/28, pp.115-116.) Third, she is associated with the Grafton School, a residential program which is the antithesis of an inclusion program. Fourth, her report, itself, is inaccurate; 22 presumes facts which are not proven; 23 and appears to confuse the concept of inclusion and special education. 24 Finally, she is equivocal on the fundamental question presented by this case. She writes "There is no judgement of which [inclusion or self-contained] is better ..... The school system's decision to include this report without the testimony of its author greatly reduces its weight as evidence.

The bottom line is 1) there is no evidence that Mark's learning will be enhanced if he is placed in a self-contained classroom; 2) it is likely that he will get less individualized attention in a self-contained classroom than in his present placement; and 3) his opportunity to interact and communicate with other children will be drastically curtailed. The evidence suggests that the proposed self-contained classroom will have a detrimental effect on Mark's present abilities and may cause regression.25

VI.

THE SELF-CONTAINED CLASSROOM ,WOULD OFFER MARK LESS INDIVIDUALIZED ATTENTION THAN HIS PRESENT PLACEMENT.

Over and over again witnesses for the School Board suggest that Mark can only learn in a "one to one" setting. They assume, without proving, that Mark will receive more individualized attention in a self-contained classroom. Not only did the School Board fail to prove this assumption, but it defies logic. In his present placement Mark receives the full time assistance of an educational aid. And because he is the only autistic child in his classroom the program can be designed to meet Mark's unique needs. Ms. Colley testified that the structure of the inclusive classroom provides substantial individualized attention. She did not believe this level of attention would be provided in a self-contained program. (Tr.9/28, pp.51-52i See also Mrs. Ruppmann's description of the Leesburg program above, p.17.)

Compare Mark's present program to the self-contained classroom. There he would be in a class with at least four other children. He would not have an aid assigned to him. Rather, he would share a teacher and an aid with the other children. (Tr.9/26, p. 281. ) Thus the "one to one" ratio guaranteed in his present placement would be reduced to "two to five". If we accept the testimony of the School Board that Mark needs "one to one" in order to make academic gains then we must reject a placement which will not provide that level of attention in favor of the regular classroom where he will have "one to one".

Applying the same logic to the proposed main streaming for Mark in Leesburg E.S. we must draw the same conclusion. If Mark needs "one to one" how will he benefit from his time in such things as Music or Art. The School Board provided no information as to how these activities would be made meaningful for Mark. The backbone of Mark's participation in these classes is a well trained aid and appropriately modified curriculum. Yet the School Board provides no evidence as to how Mark's time in "specials" would be made meaningful. In fact, to suggest that Mark would benefit from the time he would spend with non-disabled children during "specials" is not consistent with the fact that these types of activities are often less structured. Cathy Thorton stated that they often mainstreamed her students for academic subjects rather than "specials". (Tr.9/28, p.I71-72.)

There is also no logic in the assumption that a classroom of five autistic children can be more easily set up to provide for the individualized needs of each child. While the five children in that classroom might share a common label, they are all quite unique. In fact, Mr. Johnson described each child in detail, and it is clear that they each have different needs which can not and should not be addressed in a group setting. (Tr.9/26, 287-88.)

We believe that the self-contained program is more likely to be structured to provide for the presumptive needs of autistic children, rather than the identified needs of each child. This tendency to generalize according to label is demonstrated by the testimony of the school system's witnesses. Ms. Clement testified that in the autistic class they would be working on task skills such as dressing "which Mark still. needs. " But when asked "why does he need to work on dressing skills?" Ms. Clement stated "Well, to be honest, we have never seen him dress or undress." In fact, other than working on tying his shoes, dressing has not been an IEP goal for Mark. She then stated "they're working on independent [eating]. We've never seen Mark use utensils, so we're not sure, but we're -- the assumption is he doesn't eat real neatly, because he always comes back with a change of clothing." (Tr.83-85, 9/26.) These assumptions are just plain wrong.26 It also should be pointed out that while the school system stressed Mark.' s needs to improve his academic skills, Ms. Clement spent much time describing how the self-contained program will help him with non-academic skills. If, in fact, there is a need to work on self­ care skills it is clear from Ms. Colley's testimony that they can be worked on in the inclusive setting. (Tr.9/28, p.126.)

Ms. Clement also discussed the use of communication boards by the children in the autistic class. In fact the Hartmann's have no disagreement with the use of this system whatsoever. The issue is not the use of this approach rather it is the setting in which it is used. By her own testimony we know that· they had rapid success once they began to employ a communication board. Ms. Clement stated "once he got the communication board, he learned fairly quickly. It was difficult for him until we got something that could actually use himself. But I'd say he picked this up very quickly, appropriately." (Tr.9/26, p. 79.) Obviously, this approach was working well in Mark's present placement. Ms. Clement provided no reason to believe that the self-contained program is necessary to provide this assistance. 27

VII.

MARK HARTMANN IS ENTITLED TO BE EDUCATED IN THE REGULAR CLASSROOM REGARDLESS OF THE LEGAL ANALYSIS APPLIED.

In the Pre-trial Brief we argue that the Hearing Officer should adopt the legal analysis found in the line of cases embodied by Oberti and Bd. of Ed. v. Holland, 14 F.3d 1398 (9th Cir. 1994). These cases underscore the right of the severely handicapped child to be educated in the regular classroom if there is a showing that the child can benefit from an education in that setting. It is clear from the evidence that Mark Hartmann has benefitted from a regular classroom environment. It is also clear that Loudoun can provide a similar educational program for Mark if required to do so. Thus under the standard set out by this line of cases Mark Hartmann is entitled to be educated in his regular classroom.

The school system agues that the Hearing Officer is bound by the Fourth Circuit standard set out in Devries v. Fairfax County School Board, 882 F.2d 876 (4th Cir. 1989). We do not agree that a Virginia Hearing Officer is bound by the interpretative tests used in Devries, as argued below. However, even applying the dictates of the Devries case the same conclusion must be reached. The Devries decision was based on the finding that "Michael's education could not be accommodated at Annandale High School even with the use of supplementary aids and services." The Appeals Court upheld the lower Court's final conclusion "that Michael would not receive an 'appropriate public education' in the 'least restrictive environment'." (At page 880).

In reaching their decision the Court cited the Sixth Circuit decision Roncker v. Walter, 700 F.2d 1058, 1063 (1983). In balancing the "mainstreaming requirements" of the Act with placements considered academically superior, the Sixth Circuit stated

In cases where the segregated facility is considered superior the court should determine whether the services which make that placement superior could feasibly be provided in the non-segregated setting, if they can the placement in the segregated setting would be inappropriate under the Act.

The threshold question presented by Devriesi's whether the schools system seeks to place Mark in a placement which is considered superior. The school system offered no proof that Mark would make substantially different gains in the self-contained classroom. The Hartmann's witness on the other hand were of the firm opinion that the self-contained program itself would be detrimental to Mark's education. Because the school system has failed to establish that the self-contained classroom is superior they are compelled by the standard set out in Roncker to maintain Mark in the regular classroom.

Even if the self-contained classroom is considered superior, the Roncker Court requires that consideration be given to several other questions. 1) Are the benefits of the regular classroom "marginal"? 2) Are the appropriate special education services available only in the segregated classroom? And 3) was Mark a disruptive force in the regular classroom?

The answers to these questions, addressed in detail above, are: 1) That the educational benefits available in the regular classroom are far from marginal. In fact the benefits of the regular classroom are not only considerable but are unique to the setting. These are benefits which can not be duplicated in a self­ contained classroom. 2) The special education services needed by Mark, such as OT, Speech & Language, Adaptive P.E. and an appropriately modified curriculum can all be offered while Mark is educated in the regular classroom.28 3) The school system failed to prove that Mark was a disruptive force. Thus, applying the theory of the Devries case leads to the conclusion that Mark may not be removed from his present placement.

VIII.

THE HEARING OFFICER IS NOT BOUND BY THE FOURTH CIRCUIT OPINION IN THE DEVRIES CASE.

In the school system's Memorandum of Law they argue that the standard set out by the Fourth Circuit is binding on the Hearing Officer because we are within the jurisdiction of Fourth Circuit. This is a misstatement of the law. As Hearing Officer you are appointed by the Virginia Supreme Court pursuant to state law. Your charge is set out on pages 31 and 32 of the Regulations Governing Special Education Programs for Children with Disabilities. A hearing officer is to "make no presumptions in the case and shall base [her] findings of fact and decision(s) solely upon the preponderance of the evidence presented at the hearing and applicable state and federal law." (Section 3.4, A.l0. State Regs.) While the Federal Judiciary clearly shares appellate jurisdiction with the Virginia Courts in these matters, they are not empowered to establish the rules of interpretation for local hearing officers. In fact, the Supreme Court in Rowley recognized this principal stating that "courts lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy... once a court determines that the requirement of the Act have been met, questions of methodology are for resolution by the States." Id, at 208, 102 S.Ct. at 3052. As a Hearing Officer your decision is treated as a part of the State mechanism charged with resolving difficult questions of educational policy.

As such you are free to employ whichever analytical approach you feel best fits the case before you. Obviously, it would be inappropriate to interpret the IDEA in a manner which contradicts settled law as embodied by decisions of the Supreme Court. However, with respect to the analytical "tests" set out by a variety of Federal Circuit Courts you are free to choose whichever you deem most appropriate. You are even free to develop your own analytical approach.

We suggest that the Fourth Circuit approach in Devries lacks the substance of the clearly thought out approaches of the Third, Fifth, Ninth and Eleventh Circuits, all of which have rejected the test first established in the Roneker case. The Roneker decision was rendered almost twelve years ago. Both the state of special education and the interpretation of the law have moved along way in those twelve years. The cases of Daniel R.R., Oberti and Holland have all been decided within the past four years and unlike the Devries case involve young children. They are clearly of greater precedential value than Devries.29

IX.

THE IEP TEAM WAS NOT FREE TO ACT INDEPENDENTLY.

The rules and regulations which govern the development of an appropriate individualized education program assume that the IEP team will be free to act independently and free of coercion. When placement decisions have been made prior to the IEP meeting such placements have been deemed in violation of the procedural due process requirements of the IDEA. In the instant case the evidence established that the IEP team was subjected to undue pressure by Ned Waterhouse, Director of Pupil Services. On December 8, 1994 Mr. Waterhouse stated before the educational team that if he had known about Mark Hartmann's placement in the regular classroom he would not have approved it.30 In addition, Mr. Waterhouse directed the team to observe the autism classroom at the Leesburg Elementary School, the same program in which the IEP proposes to place Mark.

At that same meeting Mr. Waterhouse underscored his displeasure with placement of Mark Hartmann; stating that if they had to this for Mark Hartmann they would have to do it for other students. He concluded that this would destroy the special education programs in Loudoun County. (Tr.9/27, pp.162-64, Tr.9/28, pp.132-l40) Under the procedures of the IDEA, placement decision must be made by IEP team. While Mr. Waterhouse does not have the authority to approve or disapprove a placement his statement reflects a callous disregard for the clear and unambiguous requirements of the law.

Finally, Mr. Waterhouse advised Mary Kearney, the Director of Special Education, that she was no longer to participate in developing the educational program for Mark. The evidence establishes that Mrs. Kearney had both participated in the August 21, 1994 IEP which placed Mark in the regular classroom and supported Mark's placement by attempting to secure the services of Mrs. Ruppmann as a consultant. She appears to have been interested in providing the appropriate resources to insure Mark's program succeeded. Mrs. Kearney was the person with the most training and knowledge with respect to inclusion on Mark's team. By removing Mrs. Kearney from the team Mr. Waterhouse knew or should have known that Mark's team would be unable to meet Mark's educational needs.

With the exception of Mrs. Ruppmann, Mr. Waterhouse was in a position of authority over all those present at that meeting. He asserted this authority by instructing the persons present not to relate what he had said to anyone. By discussing the effects of Mark's placement on the expectations of other families in the County, he demonstrated that he was not interested formulating an IEP for Mark based on either Mark's individualized needs or the requirements of the law.

In an attempt to rebut the statements of Mrs. Ruppmann, Mr. waterhouse insisted that he had no intention of coercing those involved into changing Mark's placement. With respect to Mrs. Ruppmann's testimony he stated that she had made some "mischaracterization and some confabulations of some things that, in fact were said at that meeting." (Tr.10/27, p.344.) It is not clear what Mr. Waterhouse meant by this purposely vague statement. What is clear, however, is that he did not deny any of the statements attributed to him. Nor did any other rebuttal witness contradict the testimony of Mrs. Ruppmann. Thus, while the school system attempted to put the most favorable "spin" on his conduct, they did not attempt to rebut the specific statements attributed to him.

To compound Mr. Waterhouse's coercive effect on the IEP team, it must be noted that Ms. Carolyn Clement, who initially served as the case manager for Mark, is married to Mr. Waterhouse. After Ms. Clement's initial positive comments on Mark's program, by mid year she had clearly come to believe that Mark should be removed from Ashburn Elementary School. While it is not clear who influenced who, given Mr. Waterhouse's desire to undo Mark's placement in the regular classroom seems clear coupled with Ms. Clement's difficulties working with Mark, it is highly unlikely that weren't completely familiar with each others opinions. Yet when Ms. Clement was asked "Did your husband ever express to you his opinion about the appropriateness of [Mark's) placement?" she stated "I don't think he had enough familiarity to do that..." Mr. Johnson also suggested that he hadn't been advised of Mr. Waterhouse's opinion with regard to Mark's placement. (Tr.9/26, pp. 175-76, 346-47.) We believe this testimony to disingenuous at best. Not only did Mr. Waterhouse express his opinion during the December 8th meeting but as Mr. and Mrs. Hartmann testified "Mr. Waterhouse was very honest to us. He said that had he been involved in the decision to include Mark in second grade that Loudoun County would not have been done it, that he was not involved in that decision making process, and that because it was a fait accompli, he had to accept it." (Tr.9/27, p.302.) It is difficult to believe that both Ms. Clement and Mr. Johnson were unaware of Mr. Waterhouse's opinion.

We believe that the statements and actions of Mr. Waterhouse had a chilling effect on the IEP team's ability to act independently. The ultimate decision to place Mark in the autism program at the Leesburg E.S. constituted a predetermination of placement. As such the proposed placement violates the Due Process rights of Mark Hartmann. On these grounds the School System's request to change Mark's placement must be denied.

In Speilberg v. Henrico County, 853 F.2d 256; (4th Cir. 1988) the court found that the School System had decided where the child should be placed prior to developing an IEP. This was was a violation of the of 34 C.F.R. Sec. 300.552 which requires that placement decisions be made based on the IEP. The court stated that such a predetermination of placement was a failure to follow the EHA procedures (now IDEA) and therefore was "sufficient to hold that the defendants failed to provide [the student) with a FAPE."31

Given the acts and statements of Mr. Waterhouse, it would certainly be reasonable to find that the School System predetermined Mark's placement. As in Speilberg such a finding would'require the Hearing Officer to conclude that Mark had been denied a FAPE. However, even if the nature of the Mr. Waterhouse's acts and statement do not rise to the level of a procedural violation they so "poisoned the well" that it must be concluded that the decision of the IEP team lacks the credlbility which it would otherwise be accorded.

CONCLUSION

The School System comes before you requesting that they be permitted to change the placement of Mark Hartmann from a regular classroom to self-contained classroom. In order to permit this change of placement you must find that Mark can not derive an educational benefit from his present placement. It is clear that Mark can derive an educational benefit from his placement. It is equally clear that the lack of success of Mark's program at Ashburn lies on the School System's doorstep. The School System should not be permitted to change Mark's placement based on his lack of progress, when their own failures have caused this lack of progress. To permit the School System to unravel the intent of the IDEA in this manner would do a grave injustice to both Mark and the clear policies set out by the IDEA. On these grounds the School System's request must be denied.

The Hearing Officer must also determine whether the program offered by the School System provides Mark with a free appropriate public education. The facts establish that while Mark's should remain in the regular classroom, he is also entitled to an appropriately implemented special education therein. The Hartmann's urge that the Hearing Officer make the following findings of fact and conclusions of law:

1. That Mark Hartmann can and must be educated in a regular classroom.

2. That the School System has failed to provide Mark Hartmann with a free appropriate public education.

3. That the School System failed to provide Mark Hartmann with supplemental aids and services which would allow Mark to benefit from a special education in the regular classroom and to which he is entitled.

It is further requested that the School System be required to supplement Mark's special educational program by providing the services outlined by the Virginia Institute for Developmental Disabilities. (Hx.72.)

 

Joseph and Roxanna Hartmann, by

________________________________

Gerard S. Rugel, Esq.
Counsel for the Hartmanns
297 Herndon Parkway, suite 104
Herndon, VA 22070

 

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1 See also regulation promulgated pursuant to the IDEA, 34 CFR Part 300.132, 550-556.

2 The court stated "Additionally, we agree with the district court's legal conclusion that, although including Raphael in a regular classroom would require the School District to Modify the curriculum, the need for such modification is 'not a legitimate basis upon which to justify excluding a child' from the regular classroom unless the education to the other students is significantly impaired. [citations omitted]" Oberti, at page 1222.

3 Cited by the 3rd Circuit, at page 1223 emphasis added by Court.

4 Mrs. McCollough testified that she had experience with only three children with autism. One she worked with for a year and the other two during summer school. (Tr. 9/27; p.93, lines 13-23.) She is not certified in the area of profound disabilities or mental retardation. (Tr.58, lines 1-3.)

5 In contrast Mark's aid at Ashburn was either not included or was denied training that could have been extremely helpful. (Tr.*)

6 In addition, both the inclusion facilitator at the Butterfield School and Ms. Malatchi, when she served as an inclusion facilitator, were responsible for curriculum modification. (Tr. 8/15, p.184; Tr.10/27, p.8,line.8.)

7 Mrs. Fatz testified that Mrs. McCollough would make suggestions but she was expected to modify the curriculum and that the task was too difficult to accomplish. (Tr.9/27, pp.44-45, 55-56)

8 Mrs. Ruppmann described the importance of learning to predict how a child will behave so that you can reduce the behavior rather than having to react after the fact. (Tr.9/27, pp.1S9-60.)

9 The data that was collected quantified "problem" behaviors. It did not include any references to the use of the M&M program.

10 The May, 1993 IEP while prepared by the Butterfield staff was incorporated into the August IEP prepared by the Ashburn staff. (Lx.20.1)

11 In addition to its use in the Butterfield School, sensory integration therapy was recognized as an appropriate related service by Kenna Colley, Cathy Thorton and Mikki Beckler. (Tr.9/28, pp.175-76, 222-23, Hx.22, 37.)

12 The use of Mrs. Mayfield, who was known to be associated with the Grafton School, a residential facility, and as we can see from her report is not a believer in "inclusion", suggests that even in November her consultation was not for the purposes of making Mark's inclusion a success. More likely they intended at that time to employ Mrs. Mayfield to facilitate Mark's removal from the regular classroom. This is confirmed by the fact that the school system did not ask Mrs. Mayfield to prepare a report until after the IEP team had decided to change Mark's placement

13 Mr. Johnson confirmed the need to employ outside expertise stating that "we have ongoing consultations with Gail Mayfield lined up for this year." (Tr.9/26, p.342, 1.13-14.) Given Mrs. Mayfield apparent lack of expertise with the inclusive model it is unlikely that she will be of much help. (See testimony of Kenna Colley Tr.9/28, pp.115-116).

14 While consultation provided by Ms. Colley was paid for through the TAC, she was brought in at the insistence of Mrs. Hartmann. While the school system agreed to request her assistance as required by the TAC, the school system clearly had no interest in what Ms. Colley had to say. As a result they convened an IEP meeting, decided to change Mark's placement and filed for a Due Process Hearing before Ms. Colley had completed her report.

15 From his own testimony it appears that Mr. Johnson was not even doing behavioral programs for the autistic children in the Leesburg program. (Tr.9/26, p.317 1.21-23.)

16 In the self-contained classroom Mark will model at least four other children with similar "problem" behaviors, minimal language and social skills.

l7 We know that Mrs. Johnson was being asked to provide services which should have been rendered by an inclusion specilaist and/or special education teacher. In addition, Mrs. Johnson could have requested additional help for these two students. This happens on a regular basis for all children. Also Mark's aid could have been asked to work with the children while Mrs. Johnson worked with Mark.

l8 In judging the efficacy of facilitated communication, the school system placed great emphasis on validation and scientific study. Applying the same standard to the self-contained classroom there appears to be no validation of its use as an educational approach. Ms. Colley stated that the use of the approach was never validated but rather was developed in response to a misperception created by the Education for all Handicapped Children's Act. (Tr.9/2B, p.124-26.) On the other hand, Mrs. Ruppmann discussed a recently published article which suggests that in comparing the two settings for children with severe handicaps the inclusion setting appears to be more successful. (Hx.60.)

19 The report prepared by Mrs Mayfield does not discuss the particulars of the Leesburg program. Mrs. Ruppmann's observation was not made in connection with Mark Hartmann or his case. (Tr.9/27. 0.189.1)

20 From all accounts Mrs. Johnson did an admirable job against great odds. However, the frustration as a result of her lack of training in "inclusion" and autism coupled with the obvious pressure placed upon her by the administration to recommend the Leesburg program renders her opinion without merit.

21 The school system's star witness apparently was Frank Johnson. with respect to his experience he testified that during the 1970s she worked sporadically with ten children who were autistic. Of those ten children he had an ongoing teaching relationship (lasting two years) with only two of those students.

22 She states that Mark would be in a class of 28, when in fact he is in a classroom of 21.

23 She states that there would be "some expectation that fewer goals could be achieved......" The Hartmann's witnesses and the study submitted (Hx.60) contradict this assumption.

24 Mrs. Mayfield stated that Mark would not be receiving the full benefits of special education in the regular classroom. As the testimony of Kenna Colley, Jamie Ruppmann and Anne Malatchi establish this is far from the truth. Ms. Colley stated that the disabled students she worked with in the regular classroom received the full benefits of both special education and the regular classroom. (Tr.9/27, p.210, 1.5-9; Tr.9/28, p. 29-61)

25 Even if the self-contained program could provide Mark with greater academic progress the Oberti Court stressed that the "court must pay special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment, ie. the development of social and communication skills from interaction with nondisabled peers." (at page 1216.)

26 These issues have never been raised by the parent's as appropriate IEP goals. The Hartmann's testified.that while Mark was "overly" neat and expected to wear clean clothes after he had taken a shower. She also stated that while he did not cut his food he uses his fork and spoon appropriately. (Tr.l0/27, 169-72.) This was also observed by Ms. Mrazek and Ms. Thorton. (Tr.268, 8/15;Tr.9/28, p.203.).

27 Ms. Clement suggested that "the [self-contained] teacher is very knowledgeable in the use of augmentative systems." (Tr.86, 9/26.) Since the school system did not have this teacher testify this fact is not in evidence. In any case, Mark is entitled to have the assistance of a knowledgeable special education teacher in either placement. The School Board can not make the provision of such a resource contingent on a particular setting.

28 To be included in the regular classroom does not mean that Mark can not be removed when appropriate for specialized one on one services. These services must be available regardless of placement.

29 Even the findings of the Devries Court must be questioned. As Mrs. Ruppmann testified the court's conclusion that Michael Devries could not be educated in the regular classroom turned out to be quite incorrect. (Tr.9/27, pp.205-208.)

30 Mr. Waterhouse made the same statement to the Hartmanns in January. (Tr.9/27, p.302.)

31 See Hall v. Vance Cty. Bd. of Ec1ucation, 744 F.2d .629, 635 (4th Cir. 198,5).