Parent v. SAD #35

education is: The Student will participate in all areas of his academic program except when he is receiving written language support, for his academic subjects, during the teams 20 minute study hall. Document why placement is in the least restrictive education setting: Because of the Student’s success, the least restrictive environment is the regular classroom. Resource service is necessary in order to ensure continued success in the regular education setting. [J-66-67] Two goals and short term objectives address classroom behavior and achieving a C or better on quarterly report cards. [J-68-69] His BROAD WRITTEN LANGUAGE standard scores and percentile scores on the Woodcock Johnson Revised have declined from 1994.

45. Comparison Score for the Woodcock Johnson Revised:

^[J-72-72]

46. His modifications were to include a reduction of assignments, being given only one worksheet at a time, longer time, oral repots and use of a word processor. [J-

^74]

47. The Student graphed out his total homework assignments for an average number of assignments per day = 3.1 for the time period from 11/18/96-12/18/96 demonstrating no reduction.

[J-287-288]

48. Ms. Schoff, sixth grade language arts, said the Student was a good reader, had problems with written language, getting his homework done and maintaining interest. He received grades for the four quarters of F, D, F, and F. His grades were improved with the Homework Tutor worked with him which would have been second quarter. She felt that NG began to "shut down" toward the end of the year. [Testimony of Ms. Schoff; S-2; J-231]

49. Mr. DuVarney, sixth grade social studies, stated that homework was a problem all year long. He said the Student was always cooperative and not a problem in class. He appeared happy in school, got along with other children but seemed ambivalent toward school. His grades for the four quarters were F, C-, F, and C. He was going to get an F for the fourth quarter but was given the chance to take an oral exam and he did very well so he passed for the quarter. [Testimony of Mr. DuVarney]

^{50. The May 14, 1997 social studies progress report indicates}

that NG had received 8 zeroes for homework not done, a final average of 43.2 on tests. [J-233]

^{51. His mathematics progress report for the fourth quarter}

indicates an average of 48 with the comment that "The

Student seems to have just given up..." [J-232]

^{52. The Student’s average for English was a 50 for term 4. [J-}

234]

53. The Earth Science quarter status report for the fourth quarter indicated that 27 assignments were given and 16 were currently missing. [J-235]

^{54. Ms. Douglas, special education teacher, has been four years}

at the junior high school. She attended the PET meeting held in May of the Student’s fifth grade year and all the other PET meetings through the end of July of his sixth grade year. She was part of a team of five academic teachers, allied Arts teachers and 120 children. The teachers shared common planning time and had lunch at the same time. A major change in his IEP took place after the October 30^th PET with the withdrawal of the Ed Tech and the addition of the Homework Tutor. His resource time was reduced in November by PET decision from 45 minutes to 20 minutes/day because the time was not productive. The Student had began to "shut down." He would not work for me so we put him back into Allied Arts. The home tutoring seemed to work well. [Testimony of Ms. Douglas]

^{55. On 3/4/97, The Parent reported to the PET that the Student}

was experiencing frustration and depression because of school. Homework makes him angry and he was confrontational with the tutor. His teachers reported that he is failing because he doesn’t do the work. "If he were doing the work, he would be receiving a passing grade...He does not want to accept the responsibility for doing it." Another teacher felt "more demands should be placed on ..."

^{Mrs. Tobey [English] stated that "her assignments are} already so modified that further changes would mean no work." It was a determination of the PET that the Student would no longer report to the resource room for the team’s

20 minute study hall because the Student loses too much time in transitions. [S-55-56]

56. His IEP initiated on 03/05/97 takes away his remaining time in the resource room and replaces it with one time/week consultation by the special education teacher. He continues to be placed in the least restrictive education setting because of his "success." [J-58] His goals and short term objectives remained the same. [J-59-60]

57. A lengthy PET meeting was held on 5/28/97 to discuss the Student’s placement for next year. The parent addresses the Student’s educational needs based upon Dr. Bray’s recommendations, Dr. Sparrell’s recommendations and other professional sources. Her list includes: organizational ^{strategies, time management, planning, active reading, work} strategies, note taking, memory, written language, keyboard training, work processing and editing, study skills, thematic approach, problem solving skills, work modifications, consistent environment... [J-237] There is much dialogue around neurobiological disorders, lack of success during the past year and a request for an out-of- district placement. The team felt that the Student’s needs could be met in house. Mr. Hight agreed that an IEP could be developed to meet those needs. The Parent asks why hasn’t an IEP been developed where the Student would have succeeded? Why did he bring home failing grades all year?

Why is he so upset about school? The team denies the "raging" behaviors and believes he would be successful if he would only do homework. [J-237-249]

58. Aaron Stuart, Director of Youth Bound [5/29/97], states that the Student needs "...to have someone who can understand where he is coming from...potential for his success is there he just needs direction and support." [J-

250-251]

^{59. The Student had received inappropriate discipline at times}

during the year. Mr. DuVarney asked him to write "I will not throw erasers." 500 times because he needed to be treated like the other children. [Testimony of the Parent and Mr. DuVarney] Mr. Asbell gave the Student an in-school two day suspension. [J-252]

60. In June 1997, Stephen Rioux, MD writes that the Student has Tourettes syndrome with some oppositional defiant disorder [ODD] and obsessive/compulsive disorder [OCD] features. He still takes nortriptyline which is not resulting in complete resolution. His symptoms interfere with his school performance. The OCD slows processing speed and makes it very difficult for him to express himself in writing. ODD increases difficulty with compliance and affect effort. Negative mood and depressed affect are also symptoms. [S-253]

^{61. A PET was scheduled for June 17, 1997 to revise the IEP.}

The Parent refused to waive her right to 7 days prior notice. [S-308-314]

^{62. The Parent through her attorney files for a Due Process}

Hearing on May 28, 1997. [Set-126]

63. School’s attorney, by letter dated June 16, 1997, state that the District is willing to make a settlement offer. The District is willing to offer the following services in the public school for the 1997-98 school year:

^{▶ direct services to improve the Student’s written} language skills to be implemented by special education staff with the assistance of a consultant with ^{learning disabilities expertise}

^{▶ a behavioral management plan to be developed by a} behavioral consultant with experience in dealing with children with the Student’s disabilities

▶ staff training by the behavioral consultant in implementation of the behavioral management plan in each of the Student’s classes and in how to recognize and address the Student’s disabilities

^{▶ direct instruction in organizational skills, study} skills, and homework completion

^{▶ individual counseling for the Student.}

[Set-124-125]

64. The Draft IEP developed on 6/17/97 has no present level of educational performance but reiterates the same statement about his difficulty with written language, poor attitude... Services are for 80 minutes/day in the resource room, consultation by a contracted behavioral consultant and a LD consultant, tutorial services for one hour/day for 3 times/week, psychological counseling once per week. Modifications: reduce written assignments, modified grading criteria, complete homework in school, weekly communication with home... It was stated that: "Multi-sensory approaches and small group instruction that could not be appropriately provided in the regular education setting are necessary to address the Student’s writing and organizational difficulties." [Set-117-119] This Draft was written at a planning meeting. When the

Student could not be present, staff used the scheduled time to discuss possible services and develop a Draft IEP for later consideration by the PET. [S-33]

^{65. The Parent’s attorney responded with an outline of what}

needed to be agreed to for the 1997-98 year in modifying and adding to the draft IEP. [Set-112-115]

^{66. A letter confirming the settlement agreement, thus}

obviating the need for a due process hearing was sent to Carol Lenna, Hearing Officer, on June 26, 1997 by the Parent’s attorney. [Set-111]

^{67. In a hand delivered letter on June 30th , Attorney O’Meara}

sent two originals of a proposed settlement agreement...incorporating the various terms set forth in his counter-offer. [Set-110]

68. Mr. O’Meara sent a follow up letter to a telephone conversation on July 16, 1997. He noted that he still had not received any changes from school’s attorney re: settlement agreement. [Set-107-108]

69. School’s attorney responds with an amended agreement on

July 17, 1997. [Set-102-106]

^{70. Mr. O’Meara states that the District apparently has decided}

to renege on the substance of several items of importance .

He view this as a bad faith action on the part of the

^{District "to back away from a deal it already had made..."}

The Parent nevertheless agreed to attend the August PET to develop a comprehensive IEP and placement. She will not, however, be bound by her promise to release the school from claims for compensatory education... [Set-99-100]

71. On August 13, 1997, Ms. Tchao, attorney for MSAD #35 denies ever reaching a formal agreement and thus any

responsibility for parent’s attorney and expert fees. [Set-95-96]

^{72. Mr. Hight in a handwritten letter dated Sept. 3, 1997,}

writes: "I thought we had an agreement and I’m surprised that Wes [Superintendent?] is demanding changes. I never thought the agreement was outrageous in any form... I lost favor with Wes in the summer of ‘96 when I agreed to settle two cases that were in due process then... I want to mediate he wants to fight regardless of the cost." [P-473-

474]

^{73. A 7/9/97 PET meeting was held to develop an IEP for the}

student. Discussion centered around the Student’s learning disability identification and the items in the settlement agreements. The Parent is referring to it as a "legal agreement" which specifies when training is to take place, use of a consistent Ed Tech, weekly reports, etc. Carole Smith, the new special education director, suggests that the team reconvene in August. The Parent wants her "legal agreement" which states that the summer tutor to be hired will be by mutual agreement to be honored. Mr. Asbell is claiming the right to hire a tutor and does not think a "legal agreement" can supercede state law. [P-462-466]

74. The school offers a tutor for three days per week/two hours per session for three weeks to work on keyboarding and writing skills. Ms. Durgin was hired and the Parent declined the services. [S-78; S-79]

75. Ms. Patricia Wilson, M.Ed. conducted an observation as part of an on-going effort to gather information to develop an appropriate plan for the Student. This observation took place on 6/17/97. She indicated that this one snapshot revealed that the Student was successful in what was asked of him task-wise and in working with other students. In a brief talk with the teachers, she was told that the area

notworking involves the Student completing and returning homework assignments. [S-82-92]

^{76. The District agrees to pay for the Awareness Camp in}

Ellsworth to be held from August 17-August 30. [Testimony of the Parent& Ms. Smith; S-93; S-94]

^{77. The Parent files for a complaint investigation on August}

11, 1997. [P-470]

78. Kate Neale, Complaint Investigator found that the district did fail to provide the parent with prior written notice that a consultant would be making an observation of the Student. The school was not found in violation of the other allegations. [S-29-36]

79. The IEP for the 1997-98 year was developed at a meeting held on August 6, 1997. Consensus was reached after 3 hours. The Student’s handicapping code was changed to multihandicapped. A comprehensive IEP with modifications and a behavior plan was developed. [S-60-69] Present levels of educational performance are still the same as from other IEPs, Carole Smith testified that the actual levels were based upon the extensive testing of Dr. Bray and Dr. Powers and were well documented in the minutes of the PET meeting. The behavior plan was developed by Mr.

^{Amidon after the August 6th PET meeting. There was no} teacher present from the sixth grade team that could have provided knowledge about the Student as a learner. There was no discussion regarding placement. The Parent refused to sign the consent for placement form. [Testimony of Ms. Smith; S-53-59; S-60-73]

^{80. A course offering of "Working with Behavior Impaired}

Children in the Classroom" was scheduled to be offered for

^{1 CEU from 9/97-1/98. Dr. Linda Monahon, Ray Amidon and}

Carole Smith would be the instructors. [Testimony of Ms. Smith; S-71-73]

^{81. Materials mention in Dr. Bray’s report were purchased. [S-}

74]

82. On August 8, 1997, the Parent informs Mr. Kennedy, Superintendent, in writing that she has enrolled the Student at the Center Of Optimum Learning [COOL], Brentwood, NH for the ‘97-’98 year. [S-50-51]

^{83. The Center Of Optimum is a small alternative school for}

children between the ages of 9 and 14 who are experiencing difficulties with traditional school instruction. It is a year round day program, operating 193 days/year. The calendar runs from August 10, 1997-June 26, 1998. The school is designed to revitalize and remotivate learning through consistent individualized instruction. Each student with have a state-of-the-art computer system in an ungraded language-based setting. The curriculum is interdisciplinary and thematic. Tutoring is offered after school. One day per week is spent in field studies. Individual growth is assessed through portfolio documentation of each child’s work as well as informal and formal diagnostic evaluation. Support is offered for the development of skills such as planning, organization, problem solving and time management. There is one child attending COOL who does not have a code. [Testimony of

^{Ms. Cook; P-475-477; P-488-489]}

84. The school accepts students of both genders eligible for the appropriate grades served, with average or above average intellect. They may,but not necessarily have, a learning disability, language processing difficulties or ADD/ADHD. Theycannothaveaprimarycodingofseriously emotionallydisturbed.If diagnostic information is available then no other assessment is necessary. [P-489]

^{85. There are four progress report narratives sent home during}

the year and four report card conferences scheduled for each child. [P-491]

^{86. The Parent applied to the COOL Day School on May 20, 1997.}

[P-479-485]

87. The total tuition for one year was $17,500. [P-486]

^{88. Jo-Anne Dee, Special Education Consultant, has made four}

observations of the Student in his classes. Two were made during the sixth grade year at Marshwood Jr. High School and two were made during his seventh grade year at COOL.

She recommends that the Student continue in the COOL school with the focus being on increasing attention and academic performance. [Testimony of Ms. Dee; P-32; PP-33; P-45; J-

315]

^{89. The Student’s Individual Plan at COOL contains 71 pages of}

individualized OutcomeBasedGoalsandShortTerm Objectives. His present level of performance is written as grade levels and where difficulties are encountered for the Reading Comprehension: Written Expressive Language and Grammar. Goals are outcome based and short term objectives are taught through an instructional process which have four levels from lowest to highest:

TeacherModelingofSkill

^{Guided Practice of a Skill [rehersal [sic] level]}

MonitoredPracticeofaSkill[transitionlevel] AppliedLearning[automaticapplication]

Short term Objectives are measured by: informal assessment through classroom tests and quizzes, Student Presentation Portfolio, Narrative Reports during marking term, Parent/Teacher/District conferences. Students start at the

TeacherModelinglevel.[P-526-597] The IEP is very detailed to help focused on the Student’s needs. [Testimony of Ms. Cook]

90. The Student’s school program was designed to address the Student’s depression, to improve his self-esteem and social interactions, to address his negativism and inability to deal with his emotions, to increase his attention, to gain better control over his behaviors, to take responsibility for learning, to become more independent, to learn to control his impulses where possible. [Testimony of Ms. Cook] The Student has show success in his program through grades and a major improvement in self-esteem and ability to get along with peers. [Testimony of Ms. Cook, the Parent, P-599-600]

The Student’s written words regarding the difference between the COOL and MJHS: "...I am learning how to talk to people and behave right. And I have my computer." [P-

600]

^{91. While at COOL, The Student was enrolled in a grade level}

academic curriculum and received passing grades in all subjects. His grades for the first term were 7 B’s and 2

^{C’s, for the second term were 2 A’s, 6 B’s and 1 C, and for} the third term were 9 B’s and 1 A. He has not missed a day of school. [P-598]

^{92. Carol Cook, Teacher/Director of COOL, has a master’s degree}

in reading from UNH and a master’s degree in learning disabilities from Notre Dame. She spent 16 years in Epping, NH as a LD Resource Room teacher, Reading specialist, curriculum developer and Director of Special Education. She formed "Business Venture Tutelage" where she integrated educational records for families, make prescriptions, implement programs and advocate for children. She did this for five years where as an advocate, she testified at due process hearings about 20 times. She then began a new alternative school--"Learning Skills Academy"--where the focus was on the training of faculty and curriculum development. She has received the Samuel Kirk award for LD Teacher of the Year in 1988. Ms. Cook was subpoenaed to attend this hearing. [Testimony of Ms. Cook]

^{93. The COOL school was a return to what Ms. Cook enjoys most--}

working with a small group of children in an intensive two year program in an environment that helps them relax with learning. The program is year-round as it keeps the continuity and consistency for the children. Ms. Cook is the teacher, with help from experts in speech and language who do the after school tutoring daily, experts in art and fitness weekly. Outside musicians also visit the school. [Testimony of Ms. Cook]

^{94. The school is approved and certified for attendance,}

curriculum design and health and fire safety. It does not have special education approval, by choice. When five children are district-placed, Ms. Cook will then seek certification. There is one district-placed child this year and there will be three next year. [Testimony of Ms. Cook]

95. Dr. Bray, school’s expert witness, has a master’s degree in learning disabilities and a Ph.D. in Language. She holds a certificate as a Special Education Consultant. [Testimony of Ms. Bray]

^{96. She evaluated the Student in 1995 [J-124] and found that he}

did not know how to manipulate language. His reading was average to low average and his written language was the major area of concern. [J-127]

97. Dr. Bray again tested the Student in March of 1997 as part of her regular consulting day with MSAD # 35. She testified that the Student made gains in every area except written language as measured on objective tests from 1995-

97. He had gained faster that his age equivalent peers, except in written language where he lost ground. She found the Student to have processing speed significantly below average, SS=71, difficulty with pencil/paper/timed tests, difficulty organizing thoughts, forming letters. In 1995 she had recommended direct instruction in "executive function" [J-128]--organizing, following a plan, webbing and outlining. He need to be shown how to organize materials and ideas, how to develop social skills, learning strategies and study skills, and keyboarding. She recommended a team approach. The Student was not observed by Dr. Bray while in sixth grade. She did talk with Mr. Hight about the Student and did not agree that he was receiving a reasonable level of service. The Student needed daily help. By March of 1997, the Student was extremely discouraged, failing and felt that it didn’t matter what he did. [Testimony of Dr. Bray]

^{98. Dr. Bray testified that the IEP developed in August 1997}

met the standard "...reasonable success" if the staff were trained and followed through with the plan. If the Student and the Parent and all the players do not buy into the plan, it will not work. Trust is a major hurdle. The action plan is what sparks the Student and teachers need weekly opportunities to discuss their personal instructional needs on how to teach the Student. [Testimony of Dr. Bray; J-40]

^{99. The Student is a complicated "high risk" kid. Teachers}

have to be trained to know how to deal with him. They did not know how to deal with him. The Student is capable of building trust with caring people. A new environment equals a new beginning with a different set of people in a different setting. When negativism and trust were issues in fifth grade, The Student changed his attitude and engaged in learning with the assistance of a great Ed Tech. It could happen again. [Testimony of Dr. Bray]

^{100. Dr. James Sparrell, Ph.D. in Clinical Psychology, has an}

extensive background working with children and adolescents. Dr. Sparrell is licensed to practice in Maine. He first saw the Student on 2/10/97 and has seen him for a total of

26 visits over the last 16 months. The Student’s diagnosis is Tourette’s Syndrome, Oppositional Defiant Disorder, ADHD and some depression. Dr. Sparrell said the depression was almost at the level of a dysthymic disorder. There was ^{self-loathing, negative self-statements, hopelessness and} helplessness. Dr. Sparrell was concerned with the violent fantasies that the Student was having by the end of the sixth grade year. He wrote a letter to the team in May

1997 [J-36] stating that the team might need to consider a special school placement. There is a strong environmental component with the Student that affects his mood. The school was giving lots of negative feedback that the Student was not trying and that he could do the work if he tried which led to a "disconnection" between the Student and school. His violent fantasies dropped off and he shifted to more age-appropriate video games by November/December of 1997. He has developed friends and engages in social relationships. He has stopped saying "Im [sic] stupid." He is a different child, one who responded to the positive educational changes. [Testimony of Dr. Sparrell]

V. DISCUSSION

Tuition Reimbursement

The primary issue for this hearing is the matter of whether the

Parent is entitled to reimbursement from MSAD #35 for the educational services costs including transportation that were incurred by her at an out-of-state unapproved school. The Parent seeks reimbursement of tuition costs [$17,500] and transportation costs [$3,107.30] incurred during the 1997-98 school year.

In School Committee of the Town of Burlington, MA v. Depart. Of Education of the Commonwealth of MA, 105 S/Ct 1996 (1985), the Supreme Court found that reimbursement of special education expenses under the IDEA was an appropriate remedy if it was found that the public school’s placement was not providing the child with a "free appropriate education" and that the parent’s alternative placement was "proper" under the act. In Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993), the United States Supreme Court held that the IDEA’s requirement that special education placement must meet state standards cannot be applied to unilateral parental placements. The Court reasoned that it would be inconsistent with the goals of the IDEA to

forbid parents from placing their child at a private school that otherwise offers an appropriate education simply because the private school has not been authorized by the same public school system that failed to provide the student with a free appropriate public education.

Accordingly, for the Parent to prevail on this issue, she must establish by a preponderance of the evidence that the Student was not being provided with a free appropriate public education by the MSAD # 35 and that the Center of Optimal Learning School was a proper placement under the act during the 1997-98 school year.

In determining whether the Student was receiving a free appropriate public education at the time he was unilaterally placed by his mother, this Hearing Officer is guided by the following two-fold inquiry set forth in Board of Education of Hendrick Hudson Cent. School Dist. V. Rowley, 458 U.S. 176, 102

S.Ct. 3034 (1982):

First, has the State complied with the procedures set forth in the Act? And second, is the [IEP] developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?

Regarding the first inquiry, this Hearing Officer finds that MSAD

# 35 has basically complied with the procedures set forth in the

Act during the Student’s second through sixth grade school years.

The second part of the Rowley inquiry is whether the Student’s IEP was reasonably calculated to enable the Student to receive educational benefit when he was enrolled in the COOL school and when the school was officially notified that he was enrolled. The Parent applied to the COOL program on May 20, 1998 and she officially notified the superintendent that the Student would not be returning to school on August 8, 1998. The Student had two IEPs during this time period. The first was dated 05/28/97 and was to terminate on 12/09/97 and the second was developed on

08/06/98 to be in effect 09/02/98 to 06/30/98. At the PET meeting on August 6, 1997, it was determined that the Student’s handicapping code should be changed to multi-handicapped. This ^{is the first recognition of his documented learning disabilities.}

Consensus was reached to change the code, to include two periods of resource room support daily. The PET reached consensus on goals for improving written language, improving study skills, improving organizational skills, improving homework completion rate, and improving pro-social skills. The related services of

^{LD Consultant, Tutorial services [if needed], Counseling with Dr.}

Sparrell, classroom modifications and staff development were also a part of the total IEP. Placement options were not discussed as this IEP was presumed to be carried out at Marshwood Junior High School.

^{The IEP from 05/23/97 was inappropriate. It added "back in" 40} minutes/day of resource room support as a supervised study hall, despite the Student’s failing grades. Although there have been five PETs during the year to address the Student’s failing grades and non-compliant behavior, this is all the school is prepared to offer him at this time. There is no doubt that the Student had the intellectual ability to perform grade level work and to maintain passing grades in school. However, the reason he was performing poorly in school and receiving incomplete and failing grades was due to his writing disabilities, inability to put forth the required effort into work completion, and depressed mood. The type of avoidant and confrontational behavior that the Student displayed all year long with greater frequency in all classes denied him with meaningful benefit. Such misbehavior as he demonstrated, regardless of its origin, can only have the effect of impairing the traditional authoritative role of the teacher that is so important for maintaining an appropriate environment where the Student can be educated. The Student’s behaviors did not improve with any intervention except for a brief "honeymoon period." Teachers tried discipline, even a short-term in-house suspension which were punitive and non- productive. His behaviors were not effectively dealt with and managed during the school day. Work was sent home where the Parent reports, the Student would "rage" and "refuse to do it." The school then blamed the Parent for not making the Student do his homework. For the Student to receive any meaningful educational benefit, he needed to learn how to organize and plan, control his impulsive behavior, and be successful. [Testimony of Dr. Bray] To meet this goal, the Student needed a highly structured program capable of providing the consistent behavioral, emotional, social and educational support that the

Student needed.

For the foregoing reasons, this Hearing Officer finds that the Student’s IEP as amended on May 26, 1997, and all the IEPs for that year, to be inappropriate. It failed to provide the necessary structure and support that the Student required to adequately address his educational, emotional, behavioral and social needs. The IEP developed on August 6, 1997 which was to be initiated on September 3, 1997 was appropriate to address the Student’s educational, emotional, behavioral and social needs. The Student started at COOL school on August 10, 1997

Because the Student was not receiving a free appropriate public education at that time he was unilaterally placed and for the entire year preceding, is his mother entitled to reimbursement of his tuition and related expenses at the COOL school?

Consideration of reimbursement for his tuition and related expenses hinges on whether the unilateral placement school was proper under the Act. This Hearing Officer finds the Center of Optimal Learning (COOL) school to be a proper placement.

COOL school is a small, nurturing environment offering an ungraded setting, an individual plan for each student monitored by portfolio assessment and diagnostic evaluation, language-based instruction, interdisciplinary and thematic curricula across all subjects, development of basic and cultural literacy, computer technology, applied learning, study skill, development of ^{critical and creative thinking skills, community-based learning} through field studies, and character development for meeting social responsibilities. The Student required the structure and nurturing of such a setting because his behaviors had escalated during the sixth grade year to such a point that he needed a much more structured, consistent and total program to address all his needs.

School’s attorney raises the issue of least restrictive environment as a major reason why COOL school is not an appropriate placement. This Hearing Officer looked to the Burlington and Florence decisions for guidance. They stated that a private school’s failure to comply with the mainstreaming requirement can not be used as a reason to bar reimbursement.

This Hearing Officer also looked to Roland M. v. Concord School Comm (1^st Cir., 1990) and Milford Sch. Dist. v. William F. (D.N.H., 1997) for guidance.

The question becomes when should the school have known that the Student had learning problems related to his language/writing disability that escalated his oppositional behavior problems? Certainly the Candace Bray Independent Evaluation to look at written language from November 1995 and the Psychoeducational Evaluation by James Powers, also November 1995, made specific recommendations that addressed the student’s social, educational, emotional and behavioral needs. The school did not act upon the ^{documented learning disability until the August 6th IEP. COOL does not accept students who are seriously emotionally disturbed.}

They may,but not necessarily have, a learning disability, language processing difficulties or ADD/ADHD--all labels that apply to the Student.

The remaining primary issue is whether the Student’s IEPs from

1992-1996 were appropriate. From the evidence present, this Hearing Officer finds that NG’s IEPs, as periodically modified through the second through fifth grades, were appropriate and reasonably calculated to provide the Student with educational benefit. During this period, the PET properly responded to the Student’s increasing behaviors by modifying his IEP and providing him with an ed tech to provide more structure and support for

him. The acts of the PET were clearly reasonable based uponthe factsandinformationthattheypossessedatthattime.In response to the Student’s behavior, he was provided with an aide to assist in behavioral control and programming. In response to the student’s writing deficit, he was given individualized instruction in written language. Although, he has fallen behind in writing due to processing speed, motor problems, his standard scores did not indicate a major disability. In fact he went from a SS=87 in Broad Written Language (1994) to a SS=92 in 1995.

^{This indicates that the support was appropriate at this time. It} was first in 1996 that his Broad Written Language score plummeted. His Tourette’s was not diagnosed until the fifth grade, nor was the obsessive compulsive disorder. IEPs are snapshots, not retrospectives. In judging "appropriateness," one looks for what was, and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.

Thus we have two appropriate programs for 1997-98. The issue in this case is not whether the MSAD # 35 IEP is better or worse than the COOL program; but rather, the issues is whether the district’s program adequately balances the Student’s needs for educational benefit in the least restrictive environment. Under the Act, mainstreaming is preferred. Schools must educate handicapped and non-handicapped children together "to the maximum extent appropriate." The COOL program is certainly not the same as the "neighborhood" school nor does it offer richness of non- disabled peers from the Student’s own community. It does provide, however, opportunities to be with non-disabled persons through the weekly field trips, weekly visit to the Exeter Art program, weekly luncheon at a restaurant, access to one non- disabled classmate and access to non-disabled children on the playground.

What is the proper balance between free appropriate public education and least restrictive environment? The desirability of mainstreaming must be weighted in concert with the Act’s mandate for educational improvement. Appraising an appropriate educational plan, therefore, requires a balancing of the marginal benefits to be gained or lost on both sides of the academic gain/least restrictive fulcrum. Neither side is automatically entitled to extra ballast.

^{[Roland M. v. Concord School Comm. (1st Cir., 1990)]}

The parent assumed a financial risk by unilaterally changing the Student’s placement. The Parent would be entitled to reimbursement only if the school’s proposed program was determined inappropriate. That is not the case as we have two appropriate programs.

The Parent informed the district that she was enrolling her son at COOL on August 8^th, two days after the last PET meeting to determine the Student’s program for the year. Consensus was reached on all goals and objectives at this PET. There was no discussion regarding placement. The Parent refused to sign the consent for placement form. IDEA-97 gives parents even greater powers as a member of the PET with regards to programming and placement.

At this point, the school had the option to demonstrate that their IEP was appropriate by going to hearing. They did not, nor did they follow-up to see if the private school were providing a free appropriate public education. Given the Parent’s prior history of filing for a due process hearing and only withdrawing her request when she thought there was a settlement, the school should have known that she would file again. Does the school bear some responsibility in protecting a parent "at financial risk" from making a unilateral placement?

In fact there had not been any conversation between COOL and MSAD # 35 staff at any time prior to the hearing. We have a child whose program was woefully inadequate during the sixth grade year, even though excellent evaluative data existed from the fifth grade to have made a program. There were five PETs during the sixth grade which did not offer more services to this failing child, but offered less services. The PET to determine programming and placement for the sixth grade was held in May and the Parent refused to go along with the program and filed for a hearing. There were settlement talks, documents and an agreement was reached in exchange for the Parent to withdraw her request for hearing. The agreement fell through and there was a change in special education directors. The new director, who did not know the Student, did manage to pull together an appropriate IEP which was finalized at August 6^th PET, with further addition of the behavior plan in late August.

In this case, one must also look at the issue of compensatory services for the district’s failure to check the downhill slide in the sixth grade public school placement and the reneging on the settlement agreement offered in June 1997. How can one make up for the "lost" services in sixth grade and the default by the school on the settlement agreement?

The comparison of the two IEP from the equity viewpoint pits the public school placement with an appropriate IEP with community peers versus a private school placement with an appropriate IEP with limited exposure to non-handicapped peers. Certainly the COOL program is language-based, multisensory and offered by a nationally recognized teacher. There clearly was no discussion of placement which occurred "after and pursuant to the ^{development and approval of an individualized education program,"}

and insured "that the placement decision [was] made by a group of persons, including persons knowledgeable about the child, meaning of the evaluation data, and the placement options." In fact, no sixth grade teacher was present, and neither Dr. Bray, Dr. Sparrell, nor Dr. Powers were present. Dr. Bray, testified that the school’s IEP was appropriate to provide benefit but also testified that the Student was a complicated "high risk" kid who would benefit from a new environment because it equals a new beginning with a different set of people in a different setting.

Also weighing on the scale is the default by the school to the settlement offer.

This Hearing Officer believes the school could have provided a free appropriate public education during the seventh grade year but for the failure of the sixth grade year and the default on the settlement agreement, the Student is entitled to compensatory education for one year only. Since the Student has thrived in the COOL program as evidenced by work samples, testimony of Ms. Cook, the Parent, Dr. Sparrell, and the Student’s own written documentation, the Parent’s should be reimbursed for the tuition costs incurred for the academic year 1997-98.

Transportation

Regarding transportation, this Hearing Officer finds that the Parent is not entitled to reimbursement for the transportation expenses incurred for transporting the Student to and from school from August 10, 1997 to June 26, 1998. There was no testimony about whether the Parent carpooled, whether the driver remained in New Hampshire or returned to Maine during the day, or any other details about the transportation arrangements.

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The stipulations are hereby Findings of Fact.

2. The Student is a child with a multihandicapped code suffering from Tourette’s Syndrome, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Obsessive Compulsive Disorder and some Depression who qualifies for special education services. [34 CFR Reg.

^{300.7(b)(8)].}

3. MSAD # 35 has the responsibility of providing the Student with a free appropriate public education. [20 U.S.C. § 1400 etseq.]

4. The Student’s IEPs, as developed at the May 1996 PET meeting and all the IEPs developed during the 6^th grade year, including the May 28, 1997 IEP were inappropriate for failing to provide the highly structured environment the

Student needed to adequately address his academic, emotional, social and behavioral needs. [Board of Education

^{Of Hendrick Hudson Cent. School Dist. v. Rowley. 458 U.S.}

176; 102 S.Ct 3034 (1982)].

5. No IEP from the second grade year through the sixth grade year was graded as to whether objectives were met or not met. There was a total of five PET meetings during the sixth grade year with special education services ever decreasing even though the Student was failing and not meeting the goals.

6. The Student’s IEP developed on August 8, 1997 was appropriate to meet his complex needs. [Rowley]

7. The Student requires a highly structured non-confrontational program of consistent education, social, behavioral and emotional support as was provided at Center of Optimal Learning. [School Com. Of Burlington v. Dept. Of Education of Mass., 471 U.S. 359 (1985); 34 CFR Reg. 300.302]

8. COOL is not approved for special education placement by the state of Maine or New Hampshire. [Testimony of Ms. Cook; S-

1]

9. The COOL school is an appropriate placement. [Florence

County School District Four v. Carter, 20 IDELR 532 (U.S.

^1993)]

10. The "Settlement Agreement" was not honored after the Parent had withdrawn her request for hearing. [Testimony Ms. G; Set-95-126]

11. The parent is entitled to tuition reimbursement from MSAD #

35 for the educational costs associated with the Student’s placement at Center Of Optimum Learning from August 10,1997 through June 26, 1998. Payment of the tuition reimbursement satisfies all claims for compensatory education.

VII. ORDER

After due consideration of the record, the foregoing findings of fact and conclusions of law, this Hearing Officer ORDERS that MSAD # 35 reimburse the Student’s mother for $17,500, being the tuition for the Center Of Optimum Learning placement for the school year 1997-98. This satisfies all claims for compensatory education due to the failure of the MSAD # 35 to provide the Student with a free appropriate public education during 1996-97 and to honor the settlement agreement made in exchange for the withdrawal of a hearing request in June of 1997.

All other relief not expressly granted, including the request for transportation costs, is DENIED.

^.

So ordered,

Jeannie M. Hamrin, Ed.D. Hearing Officer

#98.051, "Parentv.MSAD#35"

Keith L. Barron, 4^th grade teacher

Candace Bray, Ph.D., Learning Disabilities

Consultant

Carol A. Cook, Director/teacher at Center of Optimal

Learning

JoAnne Dee, Special Education Consultant

Cindy Douglas, Special Education Teacher

Douglas E. DuVarney, 6^th grade Social Studies

Teacher

Parent

Terry L. Johnson, 3^rd Grade Teacher

Carol A. Phipps, 5^th Grade Teacher

Tami Schoff, 6^th Grade Language Arts Teacher Carole Smith, Special Services Director James Sparrell, Ph.D., Psychologist