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|90|  L.r. v township high school district no. 211
 

|90| L.r. v township high school district no. 211

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    |90|  L.r. v township high school district no. 211 |90| L.r. v township high school district no. 211 Document Transcript

    • ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARINGL. R. ) ) Student )vs. ) Case No. 3002 )TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District )CAROLYN ANN SMARON, Hearing Officer DECISION AND ORDER PROCEDURAL BACKGROUND On November 13, 2003, counsel for the parents asked that due processproceedings be reinstated and on November 14, 2003, CAROLYN ANN SMARON wasreappointed as hearing officer. The hearing officer contacted the parties to set a date andtime for a prehearing conference and Notice of Prehearing Conference was issued onNovember 21, 2003. At that time, the parties discussed tentative hearing dates, with thehearing to begin on January 5-9, 2004. Another prehearing conference took place onDecember 4, 2003 and a prehearing conference report was issued and subsequentlyamended on January 6, 2004 identifying the issues and remedies. The prehearing conference report identified the following issues and proposedremedies: PARENT ISSUE: The parents allege that the local school district has failed to comply with the terms of a Settlement Agreement entered into by the parents and the local school district on November 5, 2002 including but not limited to the following issues: 1. Paragraph 3 of the Settlement Agreement provided that the parties would utilize the services of ALICE BELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL for the purpose of formulating, implementing and revising an effective behavior intervention plan. The parents allege that the local school district failed to implement appropriate functional behavioral analyses or behavior intervention plans. 2. Paragraph 4 of the Settlement Agreement provided that there would be modifications of the content or method of delivery of the students Individualized Education Plan as an outgrowth of the functional behavior assessment and behavior intervention plan. The parents allege
    • that the school district failed to develop an appropriate IndividualizedEducation Plan including related services e.g. speech/language,occupational therapy, updated assistive technology and sensory integrationevaluations.3. Paragraph 5 of the Settlement Agreement provided that the panelof experts would train staff in understanding the characteristics of RettSyndrome, would train the staff in behavior management strategies andwould train the staff in non-violent safety procedures prior to the initiationof her program. The parents allege that the local school district personnelfailed to cooperate in attempts to provide the foregoing training to them.4. Paragraph 9 of the Settlement Agreement provided for a panel ofexperts to devise a plan for the students return to Conant High School.The panel of experts were unable to reach consensus upon a plan. Theparents allege that the least restrictive environment for the student isConant High School with appropriate supports and related services inplace.5. The parents allege that while the student was attempting to returnto Conant High School on a full time basis, the local school districtexcluded the student from using the swimming pool.6. The parents allege that at no time subsequent to the SettlementAgreement has the local school district provided a free appropriate publiceducation to the student.REQUESTED REMEDY:1. A finding that the local school has denied this student a freeappropriate public education in the least restrictive environment.2. An Order that the students placement should be Conant HighSchool.3. An Order that the local school district employ an independentbehavior specialist and such other specialists as the parents and theidentified independent behavior specialist determine are necessary, todevelop an appropriate Individualized Education Plan for this student.4. An Order that the local school district employ the independentbehavior specialist to (a) provide on-going training, monitoring, andconsultation to local school district staff and to the students parents; (b)have on-going authority for the implementation of the studentseducational program at Conant High School including the ability toapprove staff hired to work with the student, classes selected by the
    • student, and all other issues related to her educational program. In effect, the parents ask that the independent behavior specialist act as special master in the general supervision of the students program. 5. An Order that the local school district provide two years of compensatory education to follow her successful graduation or aging out of Conant High School including educational, vocational, therapeutic and other services. At all relevant times, the parties by agreement extended the 45-day timeline forconclusion of the due process proceedings. Testimony was received over forty-two (42)days with post-hearing Briefs submitted on August 9, 2004. The parties stipulated thatthe record would close on August 13, 2004 with the Decision to be issued on or beforeAugust 23, 2004. PLEADINGS FILED BY THE PARTIES AND ORDERS ISSUED BY HEARING OFFICER 1. Notice of Prehearing Conference issued 11-21-03. 2. Parents Motion to Exclude Psychiatric Evaluation and all Testimony based on or related to Psychiatric Evaluation and to Quash School Districts Request for Medical Records filed 1-6-04 3. Prehearing Conference Report issued 1-6-04 4. Prelininary Order issued 1-6-04 5. School Districts Response to Motion to Exclude Psychiatric Evaluation and all Testimony based on or related to Psychiatric Evaluation filed 1-14- 04 6. Parents Reply to School Districts Response to Motion to Exclude Psychiatric Evaluation and all Testimony based on or related to Psychiatric Evaluation filed 1-15-04. 7. Preliminary Order re Psychiatric Examination issued 1-16-04 8. Preliminary Order issued 1-19-04 9. Parents Motion to Exclude Testimony of Richard Van Acker based on Settlement Agreement 10. School Districts Motion in Limine to Bar Expert Opinion Evidence which is materially based upon or has an element consisting of a process commonly known as "facilitated communication" 11. Preliminary Order issued 3-30-04 12. School Districts Omnibus Motion to Bar Testimony of Certain Witnesses whom the Parents seek to call at hearing filed 3-26-04 13. School District Motion to Bar Testimony of Dr. Malito 14. Preliminary Order issued March 30, 2004 re Daniel Cates, Edward Rafferty and Nooshi Borhani issued 3-30-04 15. School Districts Motion to Supplement Districts Exhibit and Witness Lists filed 3-9-04
    • 16. Parents Response to Motion to Supplement Districts Exhibit and Witness Lists filed 3-23-04 17. Preliminary Order issued 3-30-04. 18. School Districts Motion in Limine regarding use of Purported "hypothetical" questions at the hearing filed 3-26-04 - no ruling issued 19. School District Motion to Supplement Record of Objections to Parents Allegation of Existence of Conflict of Interest between Brooke Whittted and Dr. Leventhal (filed after 4-2-04) 20. Affidavit of Dr. Carl Albun 21. Affidavit of Dr. Jane Feldman 22. School Districts Request to Introduce Rosemary Nizzi and Vic Morris Rebuttal Evidence in the form of Affidavits or Alternatively an Offer of Proof 23. School Districts Request to Introduce Dr. Leventhal Rebuttal Evidence in the form of his Affidavit or, alternatively, an Offer of Proof 24. School Districts offer of Dr. Richard Van Acker as an expert in the field of Retts Syndrome re medical research and successful educational interventions. 25. Preliminary Order re Leventhal Rebuttal Evidence 26. Preliminary Order re Van Acker as Expert 27. Affidavit of Vic Morris submitted by parents of the student - no objection raised by the school district 28. Affidvit of Rosemary Nizi and Vic Morris submitted by school district - no objection raised by the parents FACTS1. CONTEXT FOR SETTLEMENT AGREEMENT IN NOVEMBER, 2002 The student was first diagnosed with Rett Syndrome when she was thirty-fivemonths old and the diagnosis was confirmed when she was age six. According to recordsreceived from the students elementary school district, the student was first found eligiblefor special education at the age of three. At that time, concerns were raised about hercommunication skills, her ability to interact with her peers, and her fine motor skills.These concerns are completely understandable considering the implications of thediagnosis: the student is almost completely non-verbal ("severe communication deficits")has inconsistent ability to control her body and limbs ("apraxia") and has the handstereotypies of a girl with Rett Syndrome. The student presently communicates usingaugmentative communication devices, pointing (with and without physical assistance)and vocalizations. In 1992, a psychiatric evaluation by Dr. Theodore Allchin resulted in a diagnosisof a pervasive developmental disorder with the psychiatrist noting that the student hadclear developmental delays in all areas, engaged in self-stimulation, showed an impairedability to concentrate and to attend, had severely affected expressive language skills, andhad frequent shifts from topic to topic with little interruption. The students eligibility for
    • special education was changed to mental impairment, a change rejected by the studentsparents. While the student was still attending her elementary school district, the studentseligibility for special education was changed to "other health impaired". The elementaryrecords reflected related services from a speech therapist, occupational therapist andphysical therapist. The student commenced her freshman year at Conant High School, which is her"home school" within School District 211. School District 211 consists of five highschools: Palatine, Fremd, Conant, Schaumburg and Hoffman Estates. The school districtalso operates Kirk School, Minor School, Northwest Suburban Academy and analternative day school known as LEAP. Kirk School is a public day school for studentswith moderate and severe profound mental impairments. (R1870) No non-disabledstudents attend Kirk. Kirk accepts students from the school district, District 214 andsome out-of-district students. (R2429) Minor School is a self-contained environment forstudents with severe learning disabilities. (R1875) Northwest Suburban Academy is aself-contained environment which typically serves students with emotional disturbancesin a structured therapeutic environment. (R1876) Hoffman Estate High School offers a continuum of services to its specialeducation students from regular education classrooms; resource drop-in center/resourceservice center where students can access IEP accommodations and some tutoringservices; resource classrooms; instructional special education classrooms; support centerclasses; a self-contained program for students with emotional disturbances and theSecondary Work Experience Program (SWEP). Students in the SWEP program aretypically students with mental impairments that are focusing more on functionalacademic skills while still taking courses that meet the requirements for graduation.There are two curriculum "tracks": regular education and general studies. HoffmanEstates also has a multiple needs program focused around communication and socialskills. (R1873-1874) Within the multiple needs program there are students who areincorporated into the regular education environment, attend classes within regulareducation with different accommodations and modifications. The case manager assignedto such a student assists the teacher with the modifications and accommodations. That isthe only multiple needs program within the school district (R2672). In contrast, ConantHigh School has neither the SWEP program or the multiple needs program. (R1877) Conant High School is an overcrowded high school which offers a continuum ofservices to its special education students in a regular education setting, a resource periodsetting, a general studies setting, and a self-contained classroom for students withemotional disorders. The students with mild mental impairments are served within thegeneral studies setting. When a special education students IEP calls for a self-containedmultiple needs setting, the IEP team looks at the school district program at HoffmanEstates and determines if that placement will meet the students needs.
    • Although the school schedule contained eight periods, during her freshman year,the student was scheduled for two resource periods per day in lieu of a study hall, lunch,Physical Education, Biology, English, Life Studies and Math. The student was placed inregular education classrooms with related services in the aforesaid areas and attended theclasses with her own special education teacher and 1:1 aide. That teacher wasresponsible for modifying the curricular material to meet the students cognitive andeducational levels. During the students freshman year, she also had access to a "work room" createdby the school district as an area where the student could calm herself. The studentreturned to this area whenever she was unable to physically remain in the regulareducation classroom due to disruptive behaviors. Sequencing daily schedule, computertechnology, private toileting, change of clothes and calming techniques were availablewithin this isolated area. Behavioral data during her freshman year suggested that thestudent spent more than 50% of her day within the work room. The students behaviorvacillated between cooperative and compliant to agitated and noncompliant. During the second semester of her freshman year, the student was absent a total ofsixteen days, due to family vacations, illness, out-of-school suspensions, and testing atthe University of Chicago. The students last day of school was May 21, 2002 after twostaff members sustained nasal fractures. Despite the creation of a "work room", afunctional assessment of the students behavior and the creation of a behaviorintervention plan, the students behavior interfered with the ability of the school district toprovide an education to the student. The parents presented the testimony of Alan K. Percy, M.D., a pediatriciancertified in neurology and neurodevelopmental disabilities. Dr. Percy is licensed topractice medicine in the State of Alabama and is employed by the University of Alabamaat Birmingham. He also has teaching/hospital appointments at the University of Alabamaas well as the Children Hospital of Alabama. Dr. Percy is the associate director of theUniversitys Sparks Clinic which conducts interdisciplinary team evaluations of childrenwith a particular focus on children with Rett Syndrome. Dr. Percy was accepted as amedical expert on the research, diagnosis and treatment of Rett Syndrome. Dr. Percyconfirmed that the student has the MeCP2 gene mutation which affects overall rate ofgrowth including brain development. In effect, if the brain does not mature and makeconnections between cells, then a persons thought processes, motor function, ability toreceive external information and incorporate it into an idea or concept or anunderstanding of what is going on, is going to be limited by the fact that the brain did notdevelop in a normal way. (R7430) Dr. Percy testified that given the fine motor andcommunication skills of a girl with Rett Syndrome, available standardized tests areproblematic. Dr. Percy was of the opinion that, based on his review of the literature, girlswith Rett Syndrome typically have a mental age at the 8-10 month level. (R7393) The parents brought the student to Dr. Percys Sparks Clinic in Alabama duringthe summer of 2002. Dr. Percy testified that he believed that the parents brought thestudent to the Sparks Clinic in June 2002 because her behavior was so aversive that they
    • wanted to rule out or eliminate any physical causes that could be an explanation for thosebehaviors before embarking on another treatment program with psychotropic agents.Other than tonsillitis, Dr. Percy could find no other physical causes for the studentsaversive behavior. Dr. Percy testified that he recommended continued evaluation by amedical physician as well as a psychiatrist to determine if the student was taking theproper medications, if that was the treatment plan, or if her environment might becontributing to her problems. (R7382-7396) In 2002, the school district was required to complete a three-year reevaluation ofthe student. The school district sought and received parental consent for amultidisciplinary evaluation by the University of Chicago Developmental DisordersClinic. The Multidisciplinary Report issued in August, 2002, concluded, inter alia, thatthe students cognitive levels were scattered, from borderline and the moderate level ofmental impairment. After reviewing the students school records, the Clinic concludedthat, despite the likelihood that the student was capable of functioning at a much higherlevel than demonstrated during the evaluation, her behavioral problems were the mostsignificant issue as they so dramatically interfered with her functioning. The Clinicrecommended that the students disruptive and aggressive behaviors be brought undercontrol effectively and promptly and concluded that behavior control should be theprimary focus of her programming with academics taking a distinctly secondary role. With all of this as a background, the parties participated in a meeting on August23, 2002 to develop an Individualized Education Plan for the students sophomore year.Jennifer Pearson, the assistant to the Director of Special Education for the school district,facilitated the meeting. As Assistant to the Director, Ms. Pearson works directly with theschools within the school district and the professionals within the schools in the day-to-day management of school operations. Typically she works with the department chairs,psychologists, social workers and with the IEPs of individuals brought to her attention asthis student was brought to her attention. Ms. Pearson could commit district resourcesand often acted as facilitator for IEP meetings that she attended. The IEP team concluded that it was difficult to fully appreciate the studentscognitive potential and other capacities because her behavior grossly interfered with herability to respond and the ability of staff to work in close proximity to her. Afterexamining the data, the IEP team concluded that the student was receiving no academicbenefit from her placement in regular education classes and, after developing goals andobjectives which were functional in nature, directed that the student should be placed in amore restrictive self-contained program that intensely focused on implementation of abehavior management plan to address the students maladaptive behaviors ("alternativeday school"). The school district did not identify an appropriate alternative day schooland the parents refused to accept the placement decision of the IEP team, indicating theirdesire to request an impartial due process hearing. In addition, the parents refused towaive the requirement of a ten (10) calendar day interval before placement could occur.The result of this stand-off was a stay-put placement at Conant High School with schoolscheduled to start on August 28, 2002.
    • On August 27, 2002, the school district filed a Verified Complaint for InjunctiveRelief in the U.S. District Court for the Northern District of Illinois under Docket No. 02C 6098 in an attempt to prevent the parents from exercising their right to "stay put" atConant High School while due process proceedings were pending. The aforesaidComplaint alleged the behavior of the student and concluded with the allegation thatcontinued placement at Conant High School was unsafe and would present a substantiallikelihood of harm to the student and others. The school district was granted a temporaryrestraining order which was then extended, by agreement, to September 23, 2002.During that time period, the parents agreed to keep the student home on "home bound"services while the parties discussed settlement. On August 27, 2002, the parents had filed a request for a due process hearingofficer and on August 29, 2002, this hearing officer was appointed. Simultaneously withthe settlement discussions, due process proceedings commenced with a prehearingconference on September 23, 2002. At that prehearing conference, the parents identifiedthe issue as follows: PARENT ISSUE: The parents allege that the local school district has failed to provide the student with a free appropriate public education in the least restrictive environment in that it failed to utilize appropriate functional behavioral analyses or behavior intervention plans; failed to provide staff adequately trained in behavioral intervention; failed to use available information from independent consultants; failed to provide the student with appropriate related services; failed to provide accommodations and supports in a timely fashion; administered a psychiatric evaluation without parental consent; failed to take into account the students health condition as a variable in her behavior; failed to adequately consider or utilize more intensive options within the local high school building; modified the students Individual Education Plan without parental participation; and refused to allow the student to attend the local high school. The parents asked that the hearing officer find that the least restrictiveenvironment for the student was Conant High School with both regular and specialeducation classes and participation in mainstream non-academic activities e.g. lunch,extracurriculars; for an Order that a functional behavioral analysis and behaviorintervention plan be developed by an independent behavior specialist to be mutuallyselected by the parents and the local school district at local school district expense; thatthe behavior intervention plan so developed be implemented at Conant High School; thatthe independent behavioral consultant be retained by the local school to provide on-goingtraining, monitoring and consultation to the local school district staff and the studentsparents at local school district expense; and for an Order that the local school districtprovide the student with a "meaningful" academic program. The foregoing is the context in which the parents entered into a SettlementAgreement on November 5, 2004 and simultaneously withdrew their request for animpartial due process hearing. By the terms of the Settlement Agreement, it is clear that
    • the parties believed that they had agreed upon a process for reintegration of the studentinto Conant High School. However, the following facts, deduced from the testimony ofthe parties during these due process proceedings and the documents which the partiesthemselves generated in an endless series of letters and emails, demonstrate in convincingdetail that the issue of the students most appropriate placement is still very much anissue. The parties entered into a Settlement Agreement on November 5, 2004 aftercounsel for the parties labored for over a month to develop acceptable language. Theparents continued to believe that the school district failed to adequately respond to thestudents behavior during her freshman year. The school district continued to beconvinced that the students injurious behavior needed to be reduced incrementally in aself-contained program (whether at her home or elsewhere) before the student returned toConant High School. Both parties agreed to disagree and waived their right to furtherlitigate the August 27, 2002 placement decision or the alleged failures of the schooldistrict during the students freshman year. Instead, the parties delegated to ALICEBELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL("the Panel") the responsibility for formulating a plan for the students return to ConantHigh School. The parties agreed that Alice Belgrade, Vic Morris and Mark Lenz woulddevelop a functional analysis of the students behavior and a Behavior Intervention Planto facilitate the students return to Conant High School and that Vic Morris would serveas the coordinator for the purpose of scheduling and coordinating the activities of thePanel. Finally, the parties agreed that the plan for the students return was to reflect the"consensus" of the Panel and in the event that the Panel could not reach "consensus", thedispute would be returned to an impartial due process hearing officer or to JudgeKennelly in federal court. At that point, the hearing officer or Judge Kennelly were to"hear" from the experts as to the basis for their disagreements and thereafter resolve thematter.2. NOVEMBER 6, 2002 THROUGH APRIL 21, 2003. Vic Morris has a bachelors degree and a masters degree in social work andcertificates/continuing education in the areas of autism and behavioral intervention. VicMorris is a licensed clinical social worker and is certified to act as a school social worker.He has no classroom teaching experience. Prior to his employment by the North DuPageSpecial Education Cooperative (NDSEC), Vic Morris was a clinical social worker inresidential and community based programs, dealing primarily with adolescent and familypsychiatric issues. In the area of autism, in 1989, he participated in a project co-sponsored by theIllinois State Board of Education which provided consultative services in the area ofautism and behavioral interventions. In 1994, he attended the Institute for AppliedBehavior Analysis in Los Angeles where he studied under Gary Levinea in the area offunctional analysis of behavior and proactive behavior interventions. In that capacity hestudied the development of intervention strategies designed to minimize the occurrenceof problem behaviors and nonaversive responses to problem behaviors. Vic Morris has
    • attended numerous workshops on the topic of behavior analysis. Vic Morris testified thathe has a specialty in, focus in and interest in developing and providing behavior supportto students which enables the students to participate in their classroom programs. At present, Vic Morris is the administrator of program operations (essential theassistant director) for NDSEC which operates specialized self-contained classrooms forstudents with multiple disabilities, cognitive disabilities or behavior disorders. In thatcapacity he is chiefly responsible for program development and supervision of programsupervisors, the staff that coordinate and monitor the daily operations of all of theNDSEC classroom programs. Vic Morris is responsible for staff development andcoordinating and developing staff development for certified and noncertified staff. Healso coordinates and supervises an intervention strategies team which provides behaviorand academic consultation to the Coop staff and its member districts. Vic Morris also owns a consulting firm known as Intervention Developmentwhich specializes in educational and behavioral programming for students with autismspectrum disorders. His firm offers its services to families and school districts. NDSECprovides special education services to eight school districts in DuPage County, Illinois. Bennett Leventhal, M.D. is a professor of child and adolescent psychiatry andprofessor of pediatrics at the University of Chicago. He also runs the Sonia ShankmanOrthogenic School which is a treatment center for children with severe psychiatricillnesses who have been unable to maintain their functioning in community-basedsettings. The program serves children who have at least average intelligence and who donot have severe behavior disorders. He describes himself as a clinician, administratorand investigator with a large part of his work focusing on developmental disordersparticularly early onset disorders in childhood, their diagnosis, causes, and treatment. Dr.Leventhal has been a physician for almost 30 years, is licensed in five states and is a childand adolescent psychiatrist. Dr. Leventhal has patients who have Rett Syndrome and hehas come in contact with other patients who have Rett Syndrome who come to the Clinic.In addition, in his travels, he has seen numerous patients with Rett Syndrome. Dr.Leventhal described Rett Syndrome as a chronic condition where the girls plateau in theiroverall cognitive functioning and make limited gains after a certain point in time. He didnot believe that the girls showed no gain, just limited gains and described Rett Syndromeas a chronic disabling condition. (R3903) He was offered and accepted as an expert inthe area of child psychiatry with a focus and specialty in the area of child and adolescentpsychiatry with a focus on early onset disorders in childhood, their diagnosis, causes, andtreatment. (3897) Dr. Leventhal had been one of the participants in the multidisciplinary evaluationof the student in May and June, 2002. He recalled that the evaluators as a group werepretty used to using each others data and observations, debating, arguing, fighting witheach other until they could arrive at a consensus about diagnosis and treatment. Dr.Marea Winnega (psychologist) was and is the director of the clinic and organizes theprocess and directs the other evaluators. Dr. Leventhal was asked to do someobservations, Dr. Tom Owley (psychiatrist) was asked to do some evaluations and Jeff
    • Salt (psychologist) was asked to do some observations as well. Ultimately Dr. Leventhalhelped to review the data, discuss the case and try to help the team generate plans. Asone of the signatories to the August 22, 2002 report, Dr. Leventhal was asked if he couldidentify which part of the report was authored by him and he answered as follows: I dont think one could do it that way. We wrote and rewrote and edited this report together. There is not any one part of it that I wrote. I mean, it is a combined effort. It took three of us -- four of us, primarily Marrea and I, but certainly Marrea, Tom and I. I dont think one can distinguish one part from the other. (Leventhal R3917) Dr. Leventhal recalled that the team was concerned that the psychological testswere being administered in a manner not envisioned by the test manuals i.e. the team wasconcerned by the fact that the student had motor skills problems and was being physicallyassisted for some of the testing. Ultimately the team concluded that based on how thestudent performed in the various test settings, some of her peak skills were in theborderline or mild mentally retarded area. Dr. Leventhal acknowledged that skills at thatlevel were fairly atypical for girls with Rett Syndrome. However, the team had a fairlyserious concern that the students overall functioning might be considerably below thatlevel. (R3920-3921) In June, 2002, Dr. Leventhal believed that if the school district did goodprogramming, enhanced the programming in certain ways, managed the behaviors, andfacilitated the students communication skills, the student might be able to function at theborderline or mild mentally retarded level. (R3921) Dr. Leventhal recalled that thestudent had fairly loud vocalizations during the evaluation. He further recalled that thestudents attention was variable but sometimes she could attend. Dr. Leventhal believedthat it was difficult for the team to tell precisely where the student was functioning. ButDr. Leventhal repeated at this due process hearing what he apparently repeated in thefederal courtroom in September, 2002: I think we have been quite clear about this repeatedly that that wasnt our major concern at the time. And we felt that her behaviors were so disruptive that it made it difficult to know what was -- what her real capacity was. And we thought -- felt strongly that if we get her behaviors under control, we might have a better sense of her function. I dont think anybody elses work that I have seen thus far has suggested that there are young women who have-who are in the normal range of intelligence or the average range of intelligence. So we are still talking about a syndrome that is largely confined -- that largely includes people that have significant cognitive impairment. Much the same is true for autism. I mean, more than 75 percent have cognitive impairment. Why that is, what that means, I think is still an open question.(Leventhal R4011,4021) (Emphasis added)
    • Dr. Leventhal testified that the team recommended that the student be placed in aself contained setting that was very highly structured to help manage not only thestudents behavior but also to provide her a certain set of skills that would then allow herto function more flexibly and more broadly in other environments. (R3926) with a furtherrecommendation that the student be reassessed in a year to see if they could get a moreaccurate impression of her cognitive abilities. (R4057) Dr. Marrea Winnega testified at the due process hearing and further explainedher participation in the multidisciplinary evaluation of the student in May-June, 2002.Dr. Winnega has a Ph.D from the University of Illinois at Chicago in 1991 in clinical anddevelopmental psychology and is licensed as a clinical psychologist. Dr. Winnega is anassistant professor in the department of psychiatry working with the psychiatry interns inthe area of autism spectrum disorders. She is also the director of the DevelopmentalDisorders Clinic at the University of Chicago Department of Psychiatry. Prior tobecoming the director of the Clinic, Dr. Winnega was an employee at AERO SpecialEducation Cooperative for five years. She still acts as a consultant to the Cooperative inthe area of autism and related disorders. At the same time as her employment by AERO,Dr. Winnega had a private practice. Dr. Winnega has participated in or has been part ofthe assessment or reevaluation of five girls with Rett Syndrome. Prior to her evaluationof this student, Dr. Winnega had been involved in the assessment of two other girlsdiagnosed with the Syndrome. The goal of the evaluation was to provide an update of the students current levelof functioning including an assessment of her progress for educational purposes, all withthe purpose of updating her IEP and making a plan for the upcoming year. Theevaluation did not address the issue of the students level of educational progress. Thetesting took place over three days, two days at the University of Chicago and one at thestudents home. During informal observations of the student, Dr. Winnega concluded thatthe student seemed to have the ability to recognize words and appropriately use a symbolor picture to identify or describe them. In that regard, Dr. Winnega testified that thestudent appeared to have some reading and decoding of words, possibly at thekindergarten level. (R2025) Dr. Winnega administered the Peabody Picture Vocabulary Test, Third Edition("Peabody") and the Ravens Progressive Matrices Form Board ("Ravens"). The Peabodyis often used as a measure of cognitive abilities. In Dr. Winnegas readings on RettSyndrome at that time, it was suggested that the Peabody was a good assessment to usefor girls with Rett Syndrome. The Peabody measures one-word receptive vocabulary. Itis also looked upon in the field of psychology testing as a measure of cognitivefunctioning and correlates well with standardized IQ testing. (R1932, 2862) Typically apsychologist would start the student at their chronological age unless there is adevelopmental problem and then you would start lower. Dr. Winnega viewed the studentas having a developmental disability and had information from the school that the studenthad been "untestable". Consequently she did not start the test at the studentschronological age. (R2899). The Ravens utilized by Dr. Winnega was considered by her
    • to be a good nonverbal assessment of the students cognitive functioning. Dr. Winnegaadministered the Ravens to the student because she was doing fairly well on the Peabody. The evaluation reported that when the student received physical assistance tounclasp her hands, , she had great difficulty with the Ravens. When the student receivedphysical assistance to unclench her hands AND physical support for her dominant arm,she responded to 10 out of 12 items correctly. Dr. Winnega reported that with thephysical assistance of her mother, the student achieved a standard score of 78 which fellwithin the Borderline range of cognitive functioning. Dr. Winnega testified that there areno age equivalents on the Ravens. (R2061) Dr. Winnega computed the ratio/IQ at 12-0years. The student achieved a standard score of 55 on the Peabody which has an ageequivalency of 7-0 which falls within the extremely low range. Within the evaluation,Dr. Winnega reported that a ceiling was not obtained and at best, the results should beconsidered an estimate of the students ability. However, Dr. Winnega testified that theage equivalent scores on the Ravens and the Peabody were not a direct measure ofacademic achievement. Dr. Winnega testified that a more precise description of thestudents cognitive levels would be to state the results obtained on the Peabody representthe students minimum levels of cognition. With respect to the Ravens, Dr. Winnegatestified that the test was completed but the level of physical assistance affected theanswers provided by the student. Nonetheless the score obtained on the Ravens indicatedthat the student was functioning at the borderline range of cognitive function, right abovethe level of "retarded" (R2916-2917) Dr. Winnega recalled that the multidisciplinary evaluation recommended afunctional analysis of the students behavior and development of a new behavior plan.The Clinic recommended that the analysis and behavior plan should be developed in astable very controlled environment with a particular focus on the students aggressivebehaviors. Regarding placement, the Clinic recommended a highly structured, self-contained setting that could develop and operate an intensive behavioral intervention foraggressive and self-injurious behavior while also addressing fundamental skills such asbasic compliance training, a self-contained special education program that has verystrong behavioral training capabilities. It was the judgment of Dr. Winnega that theintensive behavior management that the Clinic was suggesting could not be done in aregular education setting and could not be implemented at Conant High School (2189) Alice Belgrade has a masters in education and thirty additional hours of trainingin behavior analysis. She is certified by the State of Illinois as a behavior therapist andheld a Type 10 teaching certificate in social and emotional disorders. During the mid-1980s, Alice Belgrade taught in multiple needs classrooms serving students with bothphysical disabilities as well as cognitive impairments and behavior disorders. She doesnot have the LBS-1 special education certification currently offered by the State ofIllinois. Alice Belgrade has been a licensed clinical professional counselor for about fiveyears and is currently employed by another school district as its behavior analyst. Inaddition to the foregoing educational and employment information, Alice Belgrade
    • testified that she is the co-founder of a private behavior consulting firm known asChicago Behavior Consultants and was and is the consultant retained by the parents ofthe student to work with the student in her home. Ms. Belgrade explained her "process"as follows: With the children, I would go into either the group home or a private home or a school, conduct a series of observations in order to finalize a functional analysis of behavior, identify the target behavior, understand the relationship between the environment, the behavior and the maintaining consequences, look at the child as a whole given their biology and their history and develop a real comprehensive behavior shaping program to address the targeted needs. And once that program was developed out of the functional analysis, we would train the staff, parents, caregivers, it could include grandparents, on the implementation of that plan. (Alice Belgrade R7017-7018) Alice Belgrade testified that she uses an ABC (antecedent/behavior/consequence)analysis when she observes a student in the home or at school. The antecedent refers towhat was occurring in the environment just before a behavior is emitted as distinguishedfrom the trigger/cause of the behavior. Her analysis consists of reviewing data to see ifthere are any patterns in terms of how the behavior corresponds to the particularantecedents. And then she would look to see if the consequence results in reinforcementof the behavior or suppression/punishment of the behavior. Ms. Belgrade believes that abehaviorist can shift or manipulate the variables by changing the response to thebehavior. She defined a "setting event" as something that occurred in advance of theantecedent, conditions that might simply set the occasion or set up a likelihood that abehavior will occur e.g. there are no communication boards available. The "establishingoperation" (student had not had breakfast) would determine whether the consequence waseither reinforcing or punishing the targeted behavior. Ms. Belgrade is of the opinion that it is essential that there be a person on-site atthe school who was a link to her. She believes that that individual would have abackground in special education but no formal training in behavior analysis but had beentrained by Ms. Belgrade in all aspects of a behavior plan. This person would supervisethe implementation of the plan by either a teacher or an aide and be in frequent contactwith Ms. Belgrade (2-3 times/week) with specific questions for feedback regardingparticular situation as they arose. Ms. Belgrade was involved in the implementation ofjust such an arrangement for a second grader who had Downs Syndrome in a situationwhere another due process hearing officer mandated the arrangement. Alice Belgrade first visited the students home on July 25, 2002 and based on herobservations of the student, concluded that the student was "high functioning". Shetestified that she had had conversations with the student where the student has "spelled"what she was trying to communicate. Prior to working with the student, Ms. Belgradehad had no communication with the school district and had no school-based information
    • as to the students educational performance. This is how Ms. Belgrade described herinteractions with the student in her home environment: there is an alertness of behavior and affect that after years and years of seeing kids and watching their subtle responses to various people and things in the environment, I have come to recognize a basic level of functioning in a child. Now, anyone can be wrong. There is no scientific certainty about these things. But on the first visit, I remember that what struck me was her alertness, her -- the way that her body language was oriented to me, the way that she answered questions, her facial affect. I asked her -- and because I felt that this was a child who -- where she was nonverbal, I felt cognitively that she was not profoundly mentally impaired. I felt there was a level of functioning there. I asked her if she could would she like to be able to say anything she wants. And unassisted she pointed to the yes card. (Alice Belgrade R7089-7090) Ms. Belgrade is of the opinion that the students vocalizations are a form ofcommunication e.g. when you ask the student a question, she will often try to answer youvocally. In her experience, when you provide a communication device, the student willcertainly utilize the device but sometimes she will still attempt to speak. (R7098-7099) After her first home visit, Ms. Belgrade reviewed a video of the student at homeengaged in various daily activities prepared by the parents, and conducted interviewswith the family. Then Ms. Belgrade prepared a behavior intervention report dated 8-29-02 (PARENT 2-10) to address what she viewed as the target behaviors: vocalizing atinappropriate times and undesired physical contact with others. Preliminarily, AliceBelgrade recommended that high preference choices be forfeited if the aggression wassevere - "consequence/punishment". That part of the plan was abandoned by the time hernext behavior plan was developed. Alice Belgrade believed that sustained vocalizationsin the classroom were not appropriate and disruptive. She wanted to work with thestudent at home to provide her with some control or delay in the vocalizations. Alicechose those target behaviors as being prominent in disrupting the students relations withothers and in the context of a school-based type or program. In Ms. Belgrades opinion,instead of using punishment to change or modify undesirable behaviors, a behaviorintervention plan should focus on teaching how to actually shape positive constructivebehaviors. ("shaping protocol") (R7110-7114)3. PANEL ACTIVITIES It is clear from his testimony that Vic Morris understood that the panel wouldprovide oversight and consultation to the IEP team in its review and development ofstrategies for the students education program. Vic Morris believed that the panel wascharged with completing an assessment of the students educational program, individualcomponents of that, and developing strategies for her return to school (R.2316) Afterlearning that the panel would include Bennett Leventhal and Alice Belgrade, Vic Morrisrecalled that he was asked to facilitate or coordinate the panel. As a panel member, he
    • was provided with a fairly complete educational history (evaluation data, IndividualEducation Plans, functional assessments, progress reports, classroom logs and variety ofother data (R2286) from the school district along with information specific to RettSyndrome from the mother of the student. Vic Morris also met the student at her homeon December 6, 2002. The student communicated by using yes/no on a communicationboard with physical assistance from her mother. She moved back and forth between thefamily room and the kitchen where Vic Morris was sitting with Mark Lenz. The studentplayed Yatzee with her mother and Mark Lenz. Dr. Leventhal understood that the parties had agreed that a panel would beassembled to monitor and make recommendations about the students continuingeducation. It was his understanding that Dr. Winnega and the rest of the University ofChicago team could participate in the panel either with him or with his direction. Fromthe beginning, Dr. Leventhal had reservations about whether the student could bereintegrated back into Conant. But Alice Belgrade was of the belief that she could dosome things that would allow reintegration to happen and would be able to train the staffto do that and Dr. Leventhal concluded that it was worth a try. (R3934-3935) Well, Alice seemed to feel that using some of the behavioral techniques in which she had expertise, that she would be able to help manage some of the aggressive behavior and vocalizations to the point that it would be easier for the student to function in a more open school setting. (Leventhal R3936) On December 11, 2002, Vic Morris scheduled a meeting at his office for thepanel members, the family and its legal representatives, and the school district and itslegal representatives. The purpose of the meeting was to review the function and purposeof the panel and establish an initial course of action for the panel. According to AliceBelgrade, the panel members did not need to discuss terminology (ABC Analysis, settingevents, establishing operations) because they were all using the same terminology and allunderstood each other. Vic Morris asked her to collect data on the various conditions thatmight or might not affect the students behavior in the home. On December 17, 2002, the panel members met at Alice Belgrades Chicago officeto review the initial information and review the file relative to the student. At thatmeeting the panel members discussed an allocation of tasks and responsibilities andplanned to reconvene to discuss those tasks and responsibilities as needed. The panelestablished a goal that Alice Belgrade would continue to work directly with the student,providing direct behavioral and instructional support for her in her home. Ms. Belgraderecalled that she was to test out conditions to see what situations, what antecedents had aneffect on the students behavior. (R7194) The panel agreed to use and rely upon the on-going data and summary data that Alice Belgrade had compiled and continued to compileduring her work with the student at her home. Dr. Leventhal was to review the medicalrecords and provide consultative support. Vic Morriss role was to review theenvironments available at Conant High School and to help develop behavior supportstrategies that might be helpful at Conant. Vic Morris did not believe that the Panel had a
    • role in consulting and advising the IEP team about academic adaptations for the student.From Vic Morriss perspective and from the perspective collectively of the panel, theywere limited to those issues that were off-shoots of their functional assessment of thetargeted behaviors of concern and that would be the focus of the panels recommendation(R2326) Alice Belgrade recalled that she believed that it was critical that the staffworking with the student have a consistent understanding of the targeted behavior andhow they were to be recorded. The data collection form developed by the Vic Morris and Alice Belgrade definedsustained vocalization as a vocalization that masks or covers the teachers voice lasting inexcess of one minute. However, there was no operational definition of the term "intensevocalizations". PARENT 7-31 Alice Belgrade recalled that she and Vic Morris definitelyagreed upon the definition for "sustained vocalizations" because they were involved inactually creating a data sheet for this targeted behavior. (R7066) The panel proceeded with a functional analysis of the students behavior. Ms.Belgrade was of the belief that behaviorists need at least five observations to assesswhether there is a pattern to behavior. Ms. Belgrade believed that behaviorists also agreethat the observation should be for at least a two hour period. Ms. Belgrade also believedthat behaviorists would give six weeks as the basic time to "test" whether the interventionplan is working. The panel participated a conference call on February 14, 2003 during which,among other things, they discussed their views as to the students cognitive levels.Bennett Leventhal based his views on Dr. Winnegas testing. Alice Belgrade based herviews on anecdotal evidence gathered during her visits with the student in her home. Thepanel ultimately concluded that having a strategy for handling the students behavior wasof greater urgency. (R7812) Prior to the students return to Conant High School in the Spring, 2003, VicMorris completed an environmental map of Conant High School which was essentially asurvey of available environments within the school, an assessment of a students accesswithin the physical environment of a school building for students with disabilities.(R2395). In that connection, Vic Morris noted the distance between the work room andsome of the academic environments in which the student would participate. Vic Morrisdid not see that distance as preventing the student from participation in her classesalthough he did ask if there were any intermediate "stops" for the student within thebuilding. The Conant High School staff was unable to identify any "stops". (R2231-2232) On February 14, 2003, Alice Belgrade prepared a draft of a behavior interventionplan. PARENT 9-76. Vic Morris then developed a behavior plan taking intoconsideration the elements of Ms. Belgrades plan. PARENT 9-86. Vic Morris did notdiscuss this plan with Alice Belgrade. (R7764) Alice Belgrade testified that she believedthat the panel should have had a meeting where they sat down with documents andtogether wrote up a final behavior plan. Alice Belgrade did not like the plan because she
    • found it difficult to follow and believed that it would be difficult for others to follow.Also, Alice believed that Vics plan had a heavy reliance on "precursory behaviors". InAlices work with the student at home, she found no significant correlation betweenprecursory behaviors and the occurrence of targeted behaviors. (R7772-7773) Rather,Alice focused on the environment as an antecedent of future behavior. Nonetheless Ms.Belgrade testified that she believed the plan could address the students behavioral needsand could be implemented appropriately by the Conant High School staff. According to Vic Morris, the Panel believed that staff development was animportant ingredient for the students return to Conant. The panel agreed that it wasnecessary and important for the staff to receive some training because although some ofthe strategies being recommended might not have been new to them, the comprehensiveapproach that was being recommended was new given the panels review of the studentsrecord. (R2515-2516) The initial recommendation was for two full days of training tocover various topics e.g. functional assessment of behavior, the specific strategies to usewith the student in response to the targeted behavior i.e. behavioral interventionstrategies, an overview of the characteristics of Rett Syndrome in general and the studentin particular, communication strategies and strategies for peer support. In Vic Morrissopinion, failure to provide the student with a method of communication might triggertargeted behavior or contribute to the targeted behavior. And thus, it was important forthe school to provide consistent access to the students various means of communicationacross settings at all times (2353). It was clear during his testimony that Vic Morris usedthe pronoun "we" to mean "the panel" based on his conclusion that in the absence ofovert opposition from the other panel members, the "we" did mean "the panel". Based upon his schedule, Vic Morris established March 19, 2003 and March 31,2003 as the training dates. Vic Morris prepared the agendas for both training dates. OnMarch 19, 2003, Alice Belgrade provided an overview to assigning meaning to behavior.The mother of the student then provided an overview of Rett Syndrome. In theafternoon, the training was focused on compiling baseline data i.e. the fundamentals ofdata collection. Alice Belgrade facilitated the afternoon session and at first focused onassigning meaning to behavior. The goal of that session was to specifically provideinformation about isolation of antecedent behavior, data collection protocols, observingand defining behavior i.e. helping the staff to understand the importance of operationallydefining specific behaviors for future data collection and analysis. The remainder of thetraining focused on the functional assessment flowchart which was essentially a summaryof a functional analysis protocol. Then the presentation focused on reactive strategyplanning during which one identifies specific responses to targeted behaviors consistentwith proactive intervention strategies. (R2552-2553) Based upon Vic Morris scheduling a second day of training on March 31, 2003,the panel anticipated that the student would re-enter Conant around April 1, 2003.However, the second day of training had to be rescheduled because the school districtstaff was on "spring break" and Phyllis Duffie, one of the presenters on assistivetechnology was on another "spring break" schedule. (R2679)Vic Morris testified that thepanel did not believe that the student should return to Conant High School in the absence
    • of both days of training. (R2244) At the second day of training, the staff was presentedwith a flowchart as a model for assessing and addressing the students problem behaviors(vocalizations, head butting, hitting) e.g. setting events, antecedent behavior, precursorybehavior, desired behavior, problem behavior, alternative replacement behaviors,maintaining consequences, proactive strategies to minimize or reduce the likelihood orthe occurrence of problem behaviors and reactive strategies to define specific responses ifthose behaviors occurred. The flowchart was developed based upon information fromstaff that had worked with the student during her freshman year, information from AliceBelgrade in her work with the student in her home, Vic Morriss observation of thestudent in her home, and comments from staff currently working with The student. Vic Morris met with the staff supporting the student. He observed the work roomand detected no foul smells or mold on the walls or leaking from the ceiling. Vic Morrisdiscussed the students schedule. Vic Morris and his associate, Mark Lenz, recommendedthat the student participate in three periods starting with the 2nd period. The studentwould have one academic class (English), Physical Education and Lunch. Vic Morrisrecalled that he discussed this schedule with Alice Belgrade and Bennett Leventhal andthey voiced no opposition. (R2233) Alice Belgrade recalled that she "assumed" that thepanel would develop criteria for behavior which would lead to an expanded day for thestudent. However, Ms. Belgrade also recalled that this area was never discussedthereafter. The focus of the panel quickly shifted to behavior assessment/planning andwriting a behavior plan by three panel members who seldom could schedule timetogether. (R7732) The panel made no modifications to the students IEP once she returned to ConantHigh School in the Spring, 2003. Jennifer Pearson testified that she attempted to arrange for an occupationaltherapist to perform a sensory integration evaluation as required by the settlementagreement. The August, 2002 IEP called for 200 minutes per month of OT services in acombination of direct and consult minutes. There was a change in the OT provider andthen there was an attempt to secure the sensory integration evaluation. The evaluationwas completed in June 2003. Ms. Pearson testified that the school district had an OTprovider reach to provide the service minutes but the parents of the student would notsign a consent for that service provider. (R3803) The August 2002 IEP contained nogoals for occupational therapy.4. SPRING 2003 - CONANT HIGH SCHOOL ("the thirty-five days") Jean Mansfield n/k/a Jean Mansfield Link was employed by the school districtin December, 2002 to act as the students special education teacher. Ms. Link hadreceived her undergraduate degree that month and was certified as an LBS-1 (learningbehavior specialist). Her student teaching experiences consisted of teaching in highschool multiple disabilities classroom, students with physical disabilities, wheelchairs aswell as cognitive disabilities at Kirk School (Fall Semester, 2002). Ms. Link had an earlyclinical experience at Kirk School with intermediate level severe to profound students
    • and autistic children. She had no prior experience implementing a behavior interventionplan prepared for a specific student. (R5383) Ms. Link knew the student from a priorexperience in August 2000 where she was assigned to her as an aide during a swimmingclass through the Northwest Special Recreation District. She recalled that she would talkto the student by asking questions, then her mom would determine the students response,using yes/no cards. Jennifer Pearson recalled that the school district was looking forsomeone who had experience working with students with disabilities, with low-incidencedisabilities, someone who had experience with assistive technology, was organized, hadexperienced in behavior data collection and someone who was good working in a teamand saw themselves as collaborative. Apparently Jennifer Pearson believed that JeanMansfield Link "fit the bill". (R2425-2426) On 23 December 2002, Ms. Link visited the students home, observed the use ofyes/no cards and other note cards that had things like: I need a break, need to use thebathroom, Im hungry, etc. - the cards were laid out in front of the student and afterhaving her hands separated, she would point to the cards-sometimes her mom or AliceBelgrade would physically assist her. She recalled that the student used a Macaw too (device with 6 cells that you couldrecord things that the student could "say" by pressing one of the cells. On crossexamination, Ms. Link testified that they played the game "Guess Who", a game that isnot usually played by a typical 16-1/2 year old but that Ms. Link has used the game withother high school students who had multiple severe disabilities, including some who werecognitively mental impaired (R5768) On January 23, 2003, Ms. Link again visited the students home. Mark Lenz andAlice Belgrade were also present. She observed the student working with Alice Belgradeon a geometry assignment created by her father. She observed that the student got up acouple of times and her mom told her that she needed to finish her work first. Ms. Linkrecalled that the student appeared confused because usually when Alice Belgradeappeared, she and Ms. Belgrade played games. Ms. Link recalled that once it wasexplained to the student that she needed to complete her "homework", she complied andsat down. (R5431) Ms. Link visited the home again on March 7, 2003 and March 10,2003. She observed yes/no cards, the Macaw and IntelliPics. She recalled that thestudent communicated that she was hungry by vocalizing. (R5450) Ms. Link testified that if the student became upset, her mom would try to figureout what was making her upset and she would ask various questions relating to herphysical needs trying to identify what was causing her to be upset. She recalled that therewere times when the student was really upset and beyond that point, she recalled that itwas very hard to get an answer from the student (R5463). On one of the home visits sheobserved the student head butt her mother when her mother insisted that she keepworking on something. Ms. Link visited the home again on March 11, 2003 and April 1, 2003 andbelieved that she had been adequately trained by Alice Belgrade. (R5474) The home
    • visits continued on April 1, 2, 3, and 4, 2003. During the April 4, 2003 visit, the studentused a TechTalk (8 cells as opposed to Macaw which had 6 cells), worked on an Englishassignment which Ms. Link had created as a worksheet with questions and a choicebetween two answers. Ms. Link testified that it seemed that the student understood thequestions with two choices because she would typically choose the correct response. Ms.Link recalled that she tried to increase the number of choices later on but mostly thestudent had two choices. (R5507) Ms. Link recalled that she attended a workshop on using augmentativecommunication provided by Infinitec prior to the student returning to Conant HighSchool and recalled the training on the behavior plan by the panel. She was asked if shereceived support, supervision or guidance about strategies to assist the studentsinvolvement in the classes and the curriculum. Ms. Links response at the hearingfocused on team meetings where the team discussed what to do if the student did notbehave appropriately. (R5511-5512) Once the student returned to Conant High School, the panel continued"monitoring the data that was provided by school personnel specific to issues of concernfor her participation, most notably her physical behaviors either self-directed or otherdirected blows" (R2244, 7081) The panel was also monitoring the data that was beingcollected by Alice Belgrade. Essentially, Alice and I reviewed the data as it was presented by the school staff looking for particular areas of success or concern relative to interventions that the panel had reviewed with the staff that worked with The student. And we were available for problem solving consultation that would be directed by the staff. (Vic Morris, R2247) In addition to reviewing data, some members of the panel participated in someteam planning meetings and information meetings to review the students progress and toconsult with the team about future program development. At one of the team meetings,the participants discussed the assistive technology evaluation conducted by KathleenPost. Q. To your knowledge, was there any IEP team convened for the purpose of considering Kathleens recommendations and incorporating them as appropriate into the IEP? A. No. There was a team meeting I believe in which this assessment report was reviewed. (Vic Morris, R2357) Vic Morris had the general impression that the direct line staff working with thestudent in Spring 2003 did a nice job in supporting her needs, having developed a goodunderstanding of how to work with her before she returned to Conant. (R4213) Further,Vic Morris had the impression through analysis of the data that the behavior strategieswere successful for The student (R2388-2389) Vic Morris testified that the amount oftime that the student actually spent in the regular education classroom would be a good
    • indicator as to whether the student was having a successful experience upon her return toConant High School (R2514) During his work on the panel, Dr. Leventhal recalled that he reviewed data andvarious communications and recalled that there were some questions about thepersistence of the behaviors, the physical behaviors, self-abusive and aggressivebehaviors toward others and then the vocalizations which were a serious problem as well.(R3937-3938) There was some concern about questions about how much time she spent in the regular classroom and how much she spent in her area. There are rooms that have been put together for her with her teachers away from the other kids. And how so-called good day and not so good days and how many of each there are. So we tried to get some sense of what was the predominance of her activities and how it was playing out and what she might actually be learning. (Leventhal R3938) During the Spring, 2003, Vic Morris had a growing impression that the staff feltthat they were not able to do anything or make any decisions concerning the studentsprogram unless the decision came from the panel. Vic Morris arrived at the impressionbecause of the fairly consistent questions and requests for information which came fromthe team via Jennifer Pearson. (4429) Vic Morris did not believe that it was desirable forthe panel to serve in the role of approving all strategies, interventions and training for thestaff to work with The student. (4236-4237) From January 2003 through May 2003, Bennett Leventhal reviewed the dataregarding vocalizations and discussed this information mostly with Vic Morris,occasionally with Alice Belgrade. And there were continuing concerns about the vocalizations in particular, because they were quite loud and disruptive, but other kinds of behaviors as well. They waxed and waned a bit. And the question was whether the interventions themselves were making a difference. So it was over that time frame we had those discussions. (Leventhal R3939) Once the student returned to Conant High School, Ms. Link testified that it wasvery difficult to assess the student academically because the time dedicated for academicuse was often occupied by dealing with her behaviors (R5794) She recalled that she wasable to continue working with the student when she presented with agitated orproblematic behavior, "at times" (R5465) She attempted to continue working becausethey did "not want self-injurious behavior, vocalization to be a means of escape from atask" (R5466) The student used her IntelliKeys and Tech Talk at school. The studentused her SuperHawk or her TechTalk (electronic communication systems) plus her low-tech boards plus a home-school communication notebook. Ms. Link created a data sheetthat had the reactive plan on it broken down into little steps and she marked if the studenthad a behavior and kept marking on the sheet as to which level she was at. She recalled
    • that the team had identified some behaviors that they felt were precursors to negativebehavior and as she witnessed them, she would mark them off on the data sheet. Thestudent was scheduled to attend one academic class, English, from 10:05 a.m.-10:55 a.m.and, when focusing on Ms. Links data, of the 35 days that the student attended Conant inthe Spring 2003, there were only two of those 35 days that the student stayed in theEnglish class for the full fifty minutes. April 21-25, 2003. The student attended the first three days and was absent thelast two days. She did not attend PE on the first two days because the team wanted thestudent to start gradually, attending her academic class first. Ms. Link testified thatduring that week there were very few negative behaviors (R5783) The daily logsreflected the following: • DAILY LOG 15-1 (Monday:4-21-03) - 10:10-10:25 vocalizing loudly, took for a walk, returned to class at 10:35, left again at 10:45 because vocalizing loudly, standing up - returned to workroom, explained unfinished work to be done as homework - 15 minutes in English • DAILY LOG 15-3 (Tuesday: 4-22-03) - stayed "entire class" because was redirected when she had short vocalizations and standing up episodes - 50 minutes in English • DAILY LOG 15-4 (Wednesday: 4-23-03) - class taking a quiz, the student would not stop vocalizing even when threatened with removal to take quiz in workroom so removed the student from the class - 10 minutes in English April 28-May 2, 2003. Ms. Link testified that the student spent no timein English due to "behaviors" (R5784) and left early on Monday and Friday. Thedaily logs reflected the following: • Monday 4-28-03 - attended 1/2 day, left ill per Weekly Summary (15-27) 0 minutes in English - sick, left early "did not or did not go, tired/not feeling well" (5883) • DAILY LOG 15-13 (Tuesday 4-29-03); DAILY LOG 15-16 COMPETING BEHAVIOR PATHS DATA SHEET - record problem behavior on 4-29-03, the replacement behavior offered and what happened then (gave her "break" from Donna and Donna went to the nurse because the student had hit Donna on her head with her forearm); DAILY LOG (Tuesday 4-29-03) - did not attend English due to noise level. • DAILY LOG 15-17 (Wednesday, 4-30-03) - did not attend English at all "due to agitated/upset behavior" - 0 minutes in English, ate lunch in the workroom for same reason • Ms. Link testified that there were occasions when she would need to provide physical pressure on the students back to get her to walk from class to class if she did not want to or did not feel like going to class (R5552) • DAILY LOG 15-21 (Thursday 5-1-03) - did not attend English, other kids giving their "Hero" speeches, worked on her speech in the workroom, many loud
    • vocalizations noted, excited about giving speech about Julia Roberts 0 minutes in English • DAILY LOG 15-23 (Friday 5-2-03) - in workroom working on speech 0 minutes in English At this point, the student had been in school for two weeks, missed 2 days ofschool at the end of the first week, left early on the first day of the second week and didnot attend English at all the 2nd week apparently because she was working either on herHero speech or exhibited agitated behavior on 4-29-03 and 4-30-03 May 5-7, 2003. The student attended class Monday thru Wednesday. Sheattended English two of the three days, one for 35 minutes and one for 40 minutes. Thedaily logs reflect the following: • Daily Log 15-29 (Monday May 5, 2003): gave her speech in English and then exited the classroom- 35 minutes in English Scott Altergotts testimony as to what happened on that day is as follows: So The student was standing at the desk and the projected image was on her as well as on the screen... The first button or first selection that The student made was not the first one on the slide I think is -- yeah. And so an image came up, and it was the wrong one. So they tried to reset. And then when she pressed the right one, if I remember correctly, there was an image of Julia Roberts that came up on the screen. The student looked at Julias picture. I dont know if she recognized her or whatnot. The student became excited, vocalizing and started jumping and actually left the area behind the desk and went off into the classroom…Jean had to go get the student and brought her back…I dont think -- if I remember correctly, I dont think they made it through the entire presentation. But we did get to see a few more slides. And there was at least one other occasion where The student got excited again, was vocalizing and walked away -- or jumped and then walked away from the presentation. And at a certain point I think we turned on the lights and decided that, you know, we wouldnt try to go back to the beginning and go through the whole presentation again. (Altergott Testimony R798-800) • DAILY LOG 15-31 (Tuesday 5-6-03) - listened to teacher lecture on summer reading and discussed upcoming unit on Julius Caesar - 40 minutes in English • DAILY LOG 15-36 Wednesday 5-7-03) - did not attend English due to behavior and bathroom needs - 0 minutes in English. May 8-13, 2003. The student did not attend English on 5-8-03, attendedEnglish for 20 minutes on 5-9-03, attended English one minute on 5-12-03, andtwenty-five minutes on Tuesday. The available daily logs reflect the following:
    • • DAILY LOG 15-40 (Thursday 5-8-03) - 0 minutes in English due to distress/possible pain • Friday 5-9-03 - 20 minutes in English • Monday 5-12-03 - 1 minute in English • DAILY LOG 15-54 (Tuesday 5-13-03) got there on time, left after 25 minutes due to loud vocalizations - 25 minutes in English May 15-21, 2003 The student attends English 30 minutes on Tuesday, nominutes on Friday, 45 minutes on Monday and 10 minutes on Tuesday. Therewas a fire alarm on Wednesday during English so no minutes in English. Theavailable daily logs reflect the following: • DAILY LOG 15-67 (Friday 5-16-03) - vocalizing so did not attend English 0 minutes in English due to vocalizing so worked in workroom, read 2 acts of Julius Caesar to the student, Ms. Mansfield noted that the student was missing large parts due to early departure from class May 22-28, 2003 The student spends 35 minutes in English on Thursday, 30minutes on Friday, 40 minutes on Tuesday and 20 minutes on Wednesday. There was noschool on Monday, 5-26-03. Available daily logs reflect the following: • DAILY LOG 15-87 -(Friday 5-23-03) - 30 minutes in English: stood up, wanted to leave so returned to workroom May 29-June 3, 2003 WEEKLY SUMMARY 5-29-03 THRU 6-3-03: nominutes in English June 4-10, 2003 WEEKLY SUMMARY 6-4-03 THRU 6-10-03 (LSD Exhibit14) - no time in English except 5 minutes on Wednesday 6-4-03. Daily logs reflect thefollowing: • DAILY LOG 15-113 (Wednesday 6-4-03) - only 5 minutes in English because class in computer lab so they returned to workroom to work on the "create a newspaper" assignment by "discussing it and we looked for pictures of Roman people on-line" (5578), the workroom had materials adapted for her and had a touch window for the computer, her Intellikeys keyboard, more material available for the student (R5613) - 5 minutes in English • DAILY LOG 15-117 (Thursday 6-5-03) - 0 minutes in English, worked in workroom on workroom computer on the newspaper assignment • DAILY LOG 15-120 (Monday 6-9-03)- 0 minutes in English, did not attend class because class reviewing material presented prior to April 21, 2003, worked on t-shirt for Alison, the student participated by answering yes/no questions as to what she wanted on the t-shirt • DAILY LOG 15-121 (Tuesday 6-10--03) 0 minutes in English, did not attend again because reviewing material for Final
    • June 11-13, 2003 WEEKLY SUMMARY 6-11-03 THRU 6-13-03 FINALSWEEK (LSD Exhibit 15) • • DAILY LOG 15-128 (Wednesday 6-11-03) 0 minutes in English • DAILY LOG 15-130 (Thursday 6-12-03) Ms. Link testified that the parents and she and agreed not to tell the student that she was not returning to Conant so that the news would not affect her ability to take her English test " or to cause her to have any other behavior issues" (R5584) • DAILY LOG 15-132 and 15-132a (Friday 6-13-03) - English Final (19-1) - three choices, 5 topics, 30 questions, developed by Ms. Link based upon the questions in the study guide given to the other students (R5615). The student took the final in her workroom because Ms. Link needed to read the questions to the student. • The other students needed quiet, the student needed someone to help her with her final exam (R5614), Ms. Link read the questions, the students aid provided some physical assistance but Ms. Link recalled that the student independently answered most questions (R5616). Ms. Link recalled that she covered the other questions when they were asking the student, so that there were only three options available for her to point at (R5635) The student got 21 out of 30 correct. Jean Link testified that there was a definite relationship between the effectivenessor ineffectiveness of the students ability to communicate and the behaviors which mayhave followed. "The student would become frustrated as any of us would whensomebody wasnt understanding what she wanted or what she was trying to say...andthere were times when we werent getting it. We didnt understand what she was tellingus. And she would get frustrated, and that would result in behavior" and then there weretimes when Ms. Link would finally figure what the student was trying to say and then"she would vocalize and jump up and get excited when we did figure out what she wastrying to tell us" (R5623) Jean Link testified that in her opinion the students would be startled anduncomfortable when the student would vocalize in English class (it was a quietenvironment and, you know, she could vocalize pretty loudly R5655) but they would"usually" continue on with their work. Ms. Link testified that the students vocalizationsplayed a big role in her ability to remain in her English class. If the student wasvocalizing very loudly, she, obviously, could not keep the student in the room because itwas disruptive to what was going on with all the other students (R5799) Juxtapose thistestimony with the testimony of the English teacher, Scott Altergott, when he recalledthat during the spring semester the student had been "restrained" in his classroom - thespecial education teacher had to hold on to her arms because the student was eitherhitting herself or jumping up and down and swinging her arms or hitting herself. (R901-902) The disruptive nature of the students attendance in the English class can not beignored. Jean Link testified that she went to the nurses office when the student head buttedher on her collar bone. The nurse reported four instances when the staff working with thestudent reported to her or involved the nurse in Spring 2003 - the collar bone incident, the
    • incident when the student head butted Ms. Link, and the instance when the student headbutted her aides face a couple of times. Jean Link recalled that the student struggled when she first returned to classbecause the class was reading Julius Caesar. Ms. Link testified that Julius Caesar isdifficult for most high school students, not just the student. She recalled that with theother material, the material that was a little more direct, she could read the story to thestudent and ask her questions that were specifically about the content of that story. Thestudent did much better with this arrangement. (R5634-5635) Ms. Link agreed that mostof the students English academic instruction occurred in the self-contained workroom.(R5792) Most of her IEP goals were attempted in the work room because it was hard todo in the classroom without being disruptive. (R5812) Ms. Link also testified that it wasvery difficult to assess the student academically as the time dedicated for academic usewas often occupied by dealing with her behaviors. Further, Ms. Link testified that it wasdifficult to assess the student because it was hard to tell at times which choice she wasreally making, where she really meant to point vs. where she actually did point. Therewere times when the student seemed to respond with ease and there were other timeswhere it took more physical assistance to get a response. (R6811-5812) Ms. Link alsotestified that the student would vocalize when she would feel distracted or overstimulated by sound and thus the work room, which was quieter, was a place where thestudent could focus more on her academic progress. (R5813). Ms. Link created a summary of the students "accomplishments" during the spring2003. She wanted to be really positive and recite the students strengths. Trudy Lane, theConant High School Special Education Chair, and Felicia Delgado, the Conant HighSchool psychologist, were looking for more data to back-up what she was saying in herreport. Ms. Link believed that her summary would be used in the "student strengths"section of the IEP. (R5663-5664) However, Ms. Link testified that Ms. Lane and Ms.Delgado were concerned that there was no data to support a statement that the studenthad demonstrated academic progress in a mainstream environment. (R5781) Followingare direct quotes from the testimony of Jean Link regarding the students thirty-five daysat Conant High School: "the majority of missed classes can be directly attributable to physical needs" - some sort of pain, needed to use the rest room, she was hungry, just physical issues that we determined from asking her questions (R5668) they used "positive feedback" in the classroom based on her observation of how Alice Belgrade worked with the student. The "positive feedback" was snacks but "alot of times the student was then distracted by food...we were hesitant to use it too much because it seemed like she was just focused on the food" (5673) the majority of the teachers contact with the student has been social - had been of a social nature - this is largely due to the fact that most of students instruction was provided directly by her inclusion facilitator as well as her
    • dedicated classroom teaching assistant - Donna and I provided most of her instruction (R5679) There was a plan for the student to have actual interaction with her English teacher on a daily basis by having the teacher ask her a question at some point during the class that had been preplanned with a preplanned response. But that did not work out because sometimes the teacher wasnt ready to ask the question that he had prepared for the student, if the discussion had gone longer or if the student had to leave, and sometimes the student was not present for the planned interaction. (R5682) "although the student has spent a minimal amount of time in the school environment, 35 days total, she has responded positively to her shortened schedule and individualized program of instruction" means "in the amount of time that I had to observe her, I think she did very well" (R5684) However, Ms. Link also recalled that when she worked with the student in her home, they were able to do alot more academic work. (R5684-5685) The main difference for the differentiation in the academic progress that the student was able to free to set her own schedule ...at home schedules were more flexible than in a mainstream school. (R5793) "The student has a great of deal of physical needs as well as difficulty with blocked communication. She has made a phenomenal effort to overcome these obstacles utilizing the support offered to her" - she tried very hard. But if the student was frustrated "...she would get to a point where she was upset or angry because we didnt understand her or werent getting the message that she was trying to give us. And sometimes she would - frequently, it was self-injurious behavior, she would hit herself, get upset. That was her way of communicating she was upset or frustrated with us" (R5693-5694) Counsel for the parents asked Ms. Link if she would have added anythingto the student "strengths" section of the August 2003 IEP. Ms. Link respondedthat she would have inserted a statement that she tried to get the student to class asmuch as possible. Prior to her exit from the school district, Ms. Link completed areport dated June 13, 2003 about the students progress on her August, 2002 IEPgoals: 1. The student will semi-independently improve understanding of "who" questions. According to Ms. Link, the student has "demonstrated the ability to respond quite accurately in the academic setting. The student is approximately 90% accurate with her responses in a social setting when she is calm and all of her physical needs have been addressed. The 90% declines significantly when the student is agitated. 2. The student will develop proper hygiene for lunch and toileting. According to Ms. Link, the student can wash her hands with soap and water with maximum assistance. The student needs hand-over- hand assistance to complete all steps with the exception of removing the
    • paper towels from the dispenser. Ms. Link reported that the student requires verbal and physical prompts. The objectives did not specify how much assistance so Ms. Link indicated the student needed "maximum" assistance and then with that, she met those goals. 3. The student will respond to a personal greeting. Ms. Link qualifies her statement that the student has met this goal by stating that the "majority of missed attempts do occur when the student is agitated or distracted by physical needs" 4. The student will demonstrate the ability match objects/pictures. Ms. Link clearly states that the student met this goal with and without physical assistance. 5. The student will improve her sorting skills. Ms. Link clearly states that the student met this goal with and without physical assistance. 6. The student will improve functional self-care for more independence in the school as seen by using spoon with moderate assistance for feeding. Ms. Link clearly states that the student met this goal with and without physical assistance. 7. PT Goal: The student will demonstrate the ability to transition from one position to another for functioning within the school environment. 8. Speech Goal: The student will demonstrate 4 communication skills 9. The student will be able to function safely in the school building - need to develop after "functional analysis" 10. AT Goal: With assistance and the use of no tech, low tech and high tech, the student will share home happenings with others. 11. The student will demonstrate sustained attention to tasks individual then group focused activities (requiring minimal fine motor coordination. According to Ms. Link, The student met all of the objectives in an individual setting but not in a group setting. (R5721) After completing her testimony as to the students "progress on goals", Ms. Linkstated that in her opinion, the student had "benefited" from her time at Conant HighSchool; that the student had developed skills that were either less developed or notpresent when she returned to Conant in spring 2003, and, in Jeans opinion, the studentwas capable of taking on more challenging objectives for the coming year. (R5721-5722)Ms. Link testified that she understood Trudy Lanes concern and Felicia Delgadosconcern that there was no data to support a statement that the student had received
    • "academic benefit" or had "academic progress" in a mainstream environment (R5781)Ms. Link also testified that when she was evaluating the students progress on her IEPgoals, she did not consider those days when the student exhibited negative behaviors.Ms. Link testified that the student was not able to do many things when she was in thecourse of having a bad day. I mean, certainly, she had behavior issues. I mean, I am not going to discount that she didnt have bad days. But most of the data that was taken as far as, you know, if the student was able to scoop, if she was able to answer questions, those kinds of things were on days where she was having good days. So I guess if that is slanting it in a positive direction, then I guess that is what I did. (Jean Mansfield Link R5733-5734)5. SUMMER 2003 By June, 2003, Bennett Leventhal concluded that the behavior interventions werenot working. Well, I think it was early on in the early months of January, February and March, it was difficult to determine whether the interventions were making a difference. There was some staff training done at the time. And there were some behavioral interventions done. And it was difficult to tell because there were periods when things seemed to be reasonably quiet and other times when things were pretty disruptive. I think it is hard to make a decision based on 20 days or 30 days of activities. So we really wanted enough time to get enough sense of that. But I think later in the school year it became quite clear that the interventions werent really having the impact that we had hoped they were going to have. (Leventhal R3940- 3941) In June, 2003, Jean Mansfield Link completed a questionnaire for an occupationaltherapy evaluation by Kids Pediatric O.T. on June 13, 2003 (Parents 1-5) Under thesection entitled "adaptability" Ms. Link reported that the student could not focus on task,was distractible, especially if food was involved. Ms. Belgrade interpreted this to meanthat when the student is hungry she is distractible. (R8719) In June, 2003, Ms. Linkreported that she had difficulty assessing the students capacity in the areas of reading,remembering information and mathematics due to the student being nonverbal andhaving apraxia. Ms. Belgrade testified at the hearing that she agrees that it is difficult toassess the student. In June 2003 Ms. Link reported that at times the student appearedvery focused and on task and at other times she was not focused and not on task. Ms.Belgrade agreed with this assessment and testified that the student has definite activitypreferences and those do affect her behavior. (R8724) In June 2003 Ms. Link reportedthat the student had difficulty with changes in routine and mood variations. Ms. Belgradeagreed with this assessment. Ms. Link testified that there were times where the studentwould act out or would have a negative behavior where Ms. Link did not see anyprecursors, where it just seemed to be out of nowhere (R5808-5809) In June 2003 Ms.
    • Link reported that the student had frequent temper tantrums/outbursts. Ms. Belgradeagreed that the student had frequent outbursts but declined to characterize them as"temper tantrums". Ms. Link testified that if the student was frustrated or angry, shewould vocalize very loudly. The student would scream out or would hit herself or wouldattempt to head butt other people...she definitely had what I would call tantrums oroutbursts (R5746-5747) Bennett Leventhal, Alice Belgrade and Vic Morris participated in a conferencecall on June 2, 2003. Bennett Leventhal recalled that he participated in the discussionsrelating to the creation of a report, to be largely authored by Vic Morris, which wouldprovide the parties with the panels thinking. So the discussion we had on the conference call was we agreed -- the three of us agreed that the continuing behavioral disruptions, in particular the vocalizations, were of sufficient severity, if they persisted, that she couldnt stay at Conant; that it was not in her best interests and it wasnt certainly in the interests of the students at Conant; and, furthermore, that if we couldnt get those behaviors under control, that she would probably need to be in a self-contained setting in order to provide the intensity of services that were necessary. (Leventhal R3944) By June 2, 2003, the panel was interested in setting a date to discuss a way to endthe panel. By that time it had become clear to Vic Morris and to other members of thepanel that the process was complicated and time consuming and there were probablybetter ways to support the students needs. Some members of the panel wanted to gatherinformation about educational placement options within the school district and in factobserved the Kirk placement. The panel also had become aware of the self-containedspecial education classroom at Hoffman Estate High School. The panel was going topursue this investigation of other program options within the school district until they hada conversation with counsel for the school district and for the family. Thereafter, thepanel concluded that this investigation of other program activity was not an appropriateactivity for the panel as it was not within the purview of the panel responsibilities as setforth in the Settlement Agreement. (R4260-4262) There had been no specific discussions with the panel about what the studentwould be doing during the summer 2003 (R2252) In Vic Morriss opinion, the panelshould not be involved in the students summer activities beyond reviewing data.Jennifer Pearson, on the other hand, seemed to believe that she needed to secure thepanels recommendation for "extended school year". (R2498) Vic Morris recalled aconversation with Jennifer Pearson on the subject in early July. Jennifer asked for arecommendation or suggestion about a summer program for the student. They discusseda district summer school program and a community based recreational program.Notwithstanding Vic Morriss belief that the panel should not be involved in summerprogramming for the student, Vic Morris provided his opinion that the student should beengaged in an extended school year component, particularly the continuation of thevocalization shaping protocol that had been initiated by Alice Belgrade (R2256) In the
    • absence of the continuation of the vocalization shaping protocol during the summer, VicMorris was of the opinion that there would be an adverse effect on the studentseducation. Jennifer Pearson recalled that the IEP team discussed summer school optionswith the students parents but the parents talked about the student again attendingsummer camp where the student would have more social opportunities. (R2483) JenniferPearson also recalled that the team discussed placing a school district employee with thestudent in her recreational program. However, she recalled that the final outcome wasthat the focus of the students summer activities would be the shaping protocol forvocalizations established by Alice Belgrade (R2446) Bennett Leventhal recalled that the panel agreed that an intensive behavioralintervention focused on the students disruptive vocalizations in her English should betried over the summer. Both he and Vic Morris were dubious that it would be successful.Further, Bennett Leventhal believed that the panel believed that if the summerintervention was not successful, that The students placement should be changed to a self-contained setting. Consequently both panel members were baffled when Alice Belgradesubsequently recommended at the August 2003 IEP meeting that the students time atConant High School be increased. A. I thought we had had a full and open airing on the topic and we arrived at a consensus about what the strategy would be. And then it changed. Q. To your knowledge, did Vic express to you whether or not he was surprised at that change? A. I dont recall whether he said he was surprised. I think we were both a little bit baffled. (Leventhal R3946-3947) Alice Belgrade prepared a summary of the June 2, 2003 telephone conference andBennett Leventhal was surprised by its content. He recalled the panel had reached aconsensus that the students placement at Conant was not working and her placementshould be changed to a self-contained classroom. Consequently he was surprised thatultimately the panel was unable to reach consensus about the students placement in the"report" described below. Q.....So the surprise that you were describing wasnt a surprise that had occurred immediately prior to the issuance of the consultation report, but rather a surprise that what you read in her E-mail was different than what you had understood from the conversation; is that right? A.....Well, my surprise is that we ultimately got to a point where we couldnt reach a consensus on the issue. Because we had relatively quickly come to a consensus on the issue in our telephone conversation on June 2nd. But over the course of the intervening weeks, by the time the report was issued, we were no longer able to achieve a consensus on that point. As you can see, there are many things which we do reach a consensus. (Leventhal R 4107-4108)
    • Vic Morris prepared a "report" in July 2003 which was presented at the August 7,2003 IEP meeting. The document was intended to provide an update and clarification ofseveral issues and concerns regarding the students program from the perspective andconsensus of the panel. There were nine points addressed within the document but therewas never a clear and unambiguous statement from all panel members that they had readthe document and agreed with every word contained therein. There was considerabledialogue back and forth within the panel about a final recommendation for placement butthere was never a consensus reached. (R4272) The panel never reached any consensusabout what would happen in the Fall, 2003. The panel was in no position to recommendanything other than Conant because they had been advised that it was not within their jobdescription to investigate any placement other than Conant. At the time that Vic Morrisprepared the document, he believed that teaching the student to exert some control,particularly to delay intense vocalizations, self-inflicted behavior/head butts would bepivotal in increasing her inclusion into school. (R4857) The "report" did not contain anyspecific panel recommendation about the number of classes that the student would attendin the Fall, 2003. (R2263). After the July 2003 report, Bennett Leventhal had no further contact with thepanel of any substance except that he knew that Vic Morris had decided that he no longerwished to participate in the panel. He believed that Vic Morris withdrew because, ingeneral, the panel did not seem to be going anywhere. Bennett Leventhal was of theopinion in July 2003 and again in November 2003 that the students continued placementat Conant was inappropriate because he believed that the student had fairly significantdifficulties managing her behaviors and in acquiring skills and in particular theacquisition of language skills. In Dr. Leventhals experience, the best way and perhapsthe only way to provide the kind of skills that this student needed was a very intensiveintervention setting that was highly structured with a large group of people who areexperienced in working with a student as complex as this student. In addition, BennettLeventhal believed (a) that the academic expectations of the regular education classroomwere beyond the students intellectual capacity and (b) the student did not seem to havecertain basic adaptive skills that he believed the student could acquire. In BennettLeventhals opinion, he is not surprised by the students negative behavior because hebelieves that the student is frustrated and does know quite what to do. In the opinion ofBennett Leventhal, valuable time has been wasted in the ability to develop the studentspotential by continuing to place her at Conant High School. (R3958-3960) Alice Belgrade worked with the student over the summer of 2003. She testifiedthat the students vocalizations in English class "could be" disruptive. Alice Belgrade isof the opinion that the student uses vocalizations to alert people that she wants tocommunicate and in those instances the vocalizations are volitional and can be shaped.In working with the student at home that summer, under controlled conditions, Alicetestified that the student was largely able to suppress vocalizations under a command todo so for a set period of time - about a minute and a half! (R8769)6. AUGUST 2003 IEP MEETINGS
    • At the inception of the panel in December, 2002, Vic Morris recalled that therehad been persistent and ongoing challenges in coordinating schedules among panelmembers. Vic Morris found that those challenges were so severe that it became difficultfor the panel to have telephone conferences together, let alone face-to-face meetings.The panel members had busy schedules and full calendars but Vic Morris could notblame any one particular panel member as they were all involved in the process. In VicMorriss opinion, these scheduling difficulties frustrated the work of the panel as far asaccomplishing the goals identified at the first and only face-to-face meeting of the panel.(R2242) At the August 7, 2003 IEP meeting, Vic Morris announced that he waseffectively withdrawing from participation in the panel because he was concerned aboutthe continuing effectiveness of the panel. In his testimony Vic Morris stated that hisdecision to withdraw from the panel was a culmination of a number of factors, mostsignificantly collaboration between panel members was exceptionally difficult tocoordinate and to effect, so that the panel members were spending huge amounts of timetrying to have relatively simple discussions or conversations about programming. And itwas apparent to Vic Morris in the IEP meeting that there were differences in perspectivebetween himself and Alice Belgrade about how to approach and best support the student.(R2266). There was no provision in the Settlement Agreement for the withdrawal of apanel member. From all appearances, the parties continued to function as if nothing hadchanged. It is clear from his testimony that Vic Morris was of the opinion at the August 7,2003 IEP meeting that the student was participating successfully at Conant High School,that she was receiving benefit from her participation, that the benefit included a socialand behavioral benefit, the ability to develop communication skills in relation to peersand adults, deriving benefit in terms of her ability to develop skills in relation to access tothe curriculum, and that she was making progress in accomplishing her goals andobjectives. Vic Morris was of the opinion that there was no reason to suggest that thestudent be transferred to another setting due to her experience and progress to date.(R4309-4310) It is equally clear that Bennett Leventhal did not share this opinion andthat the actual experience of the classroom teacher, Jean Mansfield Link, was completelyat odds with Vic Morris belief. Jennifer Pearson recalled that there was no discussion ofgoals at the August 7, 2003 IEP meeting. After the meeting adjourned, Ms. Pearsonrecalled that counsel for the parents sent a list of goals and objectives which they wishedincorporated into the IEP. She believed that the IEP team took those recommendationsinto consideration as they finalized the August 15, 2003 IEP. At the August 15, 2003, the parties reviewed the students progress on her 2002IEP goals and objectives, developed new goals and objectives and then proceeded todiscuss the students placement. Jennifer Pearson also chaired and facilitated thismeeting. Ms. Belgrade at first recommended that the student return to Conant HighSchool on a full-time basis. The educational staff members then left to "caucus" aboutthis recommendation. In Jennifer Pearsons mind, the parents, Alice Belgrade and theircounsel were "caucusing" too. At the end of the private "caucuses" the school districtmembers of the IEP team issued a written statement indicating that they would haveordinarily recommended that the students placement be changed to a self-contained day
    • or residential program but felt constrained by the Settlement Agreement. The IEP teamthen acquiesced in the parents demand that the student return to Conant High School andoffered to provide the student with programming for six class periods for the fall, 2003.In Alice Belgrades opinion, as expressed during the hearing, there was no reasonpreventing the student from attending school for a full day but not with a full load ofclasses. Rather, Ms. Belgrade believed that the student should enroll in approximatelyfour academic classes. During the IEP team, the team did not specifically suggest the multiple needsprogram at Hoffman Estates High School because they believed that the student neededan intensive behavioral component to her program to work on her vocalizations, to workon her self-injurious behaviors, and her physical contacts with others. (R4376) At thehearing, Jennifer Pearson stated that she did not believe that the staff at Hoffman EstateHigh School had sufficient experience with students with severe behavior andcommunication needs. Rather, Ms. Pearson believed that the program operated byNDSEC at Lake Park High School contained the necessary behavioral components andthe staff had more experience with lower incidence students with severe communicationand behavioral needs. (R4377) At the hearing, Ms. Link was asked her opinion as the students special educationteacher on the students continued placement at Conant High School. Ms. Link testifiedthat although she believed that the student could go to Conant conditioned upon certainthings i.e. addressing the students need for flexibility i.e. the student needs people whoare flexible to her needs and put her needs first. Ms. Link believed that the role ofeducation for the student would be to teach her to be as independent as possible and that afunctional curriculum has value for the student At the hearing, Alice Belgrade was asked what she believed would be a "perfectplan" for the student. Ms. Belgrade opined that she does not think that the number ofminutes that the student actually spends in an academic class is an importantconsideration. In fact Ms. Belgrade believes that the student should spend as much timeas she is able in a regular education class to absorb as much information as she is able.Ms. Belgrade was focused on the social interaction which takes place before class begins,in the hallway, after class in the cafeteria. In short, Ms. Belgrade believes that the issueof how many classes or how long the student is in the class is not the most importantissue for her in terms of deciding where the student should be educated. From herperspective, the most important issue for the student is her connection and commonalitywith her peers. (R8955-8957) Alice Belgrade was asked about the student standing up in a classroom and sheopined that maybe the student was listening while standing. Ms. Belgrade was thenasked about the students special education teachers role in weighing or balancing out theneeds of the class in terms of distraction and attentiveness if the student stood up in theclassroom. Ms. Belgrade stated that she does not find the behavior disruptive. (R8948)
    • She believed that the student should attend school on a full time basis with fouracademic classes. Ms. Belgrade further believed that the four regular education teachersand the special education teacher should meet on a weekly basis, maybe even two orthree times a week, with their lesson plans for the next week so that the special educationteach would be aware of what was being covered in the four academic classes. Then thespecial education teacher would modify the materials for the four classes using a varietyof visuals and graphic type organizers to highlight key information, possibly usingoutlines to key into the sequence that the regular education teacher was using. Thespecial education teacher would modify the classroom materials so that the student couldquickly get at the main concepts and also give the student a way to a question/answerformat on a regular basis to make sure that the special education teacher could monitorthe students understanding of the material in the four academic classes on a daily basis.In the opinion of Ms. Belgrade, she would not provide the student with an alternatecurriculum. She would simply have the special education teacher modify the regularcurriculum in a format that is more accessible to the student, eliminating extraneouspieces of information, honing in on key main ideas. (R889-8896) Ms. Belgrade concededat the hearing that she had not tested the student and thus the foregoing was a hypothesisof hers. (R8898)7. FALL 2003 - CONANT HIGH SCHOOL ("the twenty-seven days") The student was scheduled for six classes in the Fall: two academic classes -English and Earth Science, Foods, Physical Education, Lunch and a Resource Period.Jean Mansfield had resigned and the school district had not retained the students 1:1aide. The student had a new special education teacher (Bethany Powers) and 1:1 aide(Nora Mulcrone) with a 1:1 aide backup. Bethany Powers had been an inclusion teacherwith the school district since July 2003 after completion of her undergraduate program inspecial education in February 2003. During the summer 2002 she had worked in amultiple needs self-contained classroom. Ms. Powers testified that she had had numerousfield experiences from kindergarten through high school working with students withmultiple disabilities including observations hours as well as actual experiences in theclassroom. She testified that she had used assistive technology with special needsstudents, and was familiar with a variety of assistive technology devices e.g. SuperHawk,Intellikeys. Bethany Powers testified that the school district indicated to her, during theinterview process, that she would be working with a student with Rett Syndrome. Shetestified that she then went home and did some preliminary research regarding RettSyndrome. After she signed her employment contract, Ms. Powers read the RettSyndrome Handbook and watched the Spring 2003 training tapes - Alice Belgrade,Phyllis Duffie, and Vic Morris/Mark Lenz. She also visited the students work room tofamiliarize herself with previous work samples, software that had been utilized, assistivetech devices that had been utilized. She reviewed the students IEPs, behavior logs anddifferent data collection. Ms. Powers testified that she received a "refresher" course onAT from Phyllis Duffie a week or two into the school year and "refresher" course on thestudents behavior intervention plan from Jennifer Pearson. She was advised that certain
    • precursory behaviors would signal a negative behavior. Ms. Powers testified that thestudent would not always exhibit a precursory behavior prior to engaging in a negativebehavior. Ms. Powers testified that the students augmentative communication deviceswere always available to the student. Bethany Powers first met the students parents at the 8-15-03 IEP meeting andmet the student in her home after the IEP meeting but prior to the start of the school year.She was invited to the students home so that she could get to know the student and alsoso that the mother of the student could demonstrate how the student communicated, howshe was toileted and how she ate. On that occasion, Ms. Powers was accompanied byJennifer Pearson and Alice Belgrade was also present. On the second occasion Ms.Powers was accompanied by Stacey Rubin, the Northwest Suburban Special EducationOrganization (NSSEO) consultant for the school district. Bethany Powers was advised of the students schedule on the Monday beforeschool started and contacted her teachers via email. She testified that the studentsteachers would provide her with the work that wasdone in the class, two copies of thetextbooks, and all worksheets and novels that would be read by the students. In the beginning of the school year, Bethany Powers testified that the studentwould walk to her classes. She testified that it progressively took the student longer toget to each class, eventually taking 10-20 minutes to even get to class, with the studentstopping, taking a few steps, stopping, and so on. When in class, the student would humquietly to herself. Other times, she would vocalize with a quick burst of vocalization.And then at other times it would be a more sustained vocalization where it lasted forseveral seconds, a minute nonstop. The intensity of the vocalizations seemed to increaseas school went on as well. She seemed to get louder. She was so loud that you couldhear her in the hallways. (R1503-1504) In response to the vocalizations, BP would lookto the reactive strategy plan for vocalizations. She would follow each step and arrowdown in communicating with her in trying to minimize those vocalizations. If thestrategies did not work, the student would be removed to the hallway and the studentwould be asked if she wanted to go back to her workroom or if she wanted to be alone.Ms. Powers testified that there never was a plan that the student would return to theworkroom after every class. Rather, it just happened based on her needs and behavior(R1636). The student attended two class periods on the first day of school, the second dayshe attended four periods, and on the third day of school (8-29-03) the student attendedall six periods. In her testimony, Ms. Powers went through the setting events, antecedentbehavior, etc. of the behavior data sheets. For 8-29-03, she testified that the "settingevent" was that the student had her period and had not gone to the bathroom. As theywere walking down the hall, the student head-butted her. At 10:40 a.m. the studentgrabbed at the teacher assistants glasses, scratching her face. At 11:30 a.m., Ms. Powerswas trying to toilet the student and the student head-butted Ms. Powers. There were noprecursory behaviors noted in any of the foregoing incidents. At approximately the noonhour, Ms. Powers called the parents and they took the student home.
    • Bethany Powers testified that it was her understanding that the student hadtypically arrived at school at 8:45 a.m. But as the school year went on, the student wouldarrive a bit later - 9:00, 9:10, 9:15 a.m. and Ms. Powers testified that the delay usuallyrelated to a toileting issue. With the exception of August 27-29, 2003. Bethany Powers testified that sheprepared weekly summaries of the students behaviors and had the weekly summariesavailable for the weekly team meetings. The summaries reflect that the student spentvery little time in her academic classrooms. Ms. Powers testified that the student wouldmiss class due to behaviors and would return to her workroom. Ms. Powers testified thatupon her return to her workroom, the student would continue the behaviors thuspreventing Ms. Powers from continuing the academic lesson in the workroom (R1711-1712) With respect to the issue of peer interactions, Bethany Powers testified that peerinteractions were minimal. In the classroom she would encourage the student to workwith a group when there was a group project going on, for example, in earth science. Thestudent did not show interest in doing that. She would usually choose to go back to herwork room when asked if she wanted to work with a group. (R1687) In English, therewas not much opportunity for peer interactions. The student would get to class latewhether it was toileting, snacks, taking a long time to walk to class, whatever it was.When Ms. Powers and the student would get to class, the English teacher would alreadybe involved in teaching the class. Both of the students academic courses, the earthscience and the English, were lecture based classes, junior level classes where there is alot of instruction. In earth science there were opportunities for labs, but by coincidenceor for whatever reason, the students absences or other concerns, the student was never inearth science on a lab day. (R1687-1688) From the very beginning, the student behaved differently than she had behaved inthe Spring 2003. Unknown to Ms. Powers, at her home, the student was harder to wakeup, did not eat as well and did not smile as much (R7523) The student was absent fromschool from September 8-12, 2003 due to an impacted bowel. Bethany Powers testifiedthat there were days when the student appeared off-balance, a little bit unsteady. Therewas a time when she fell back into a table. And there were times where she would runback and forth in the workroom. And when she would run, she would get close to thepaper towel holder, close to cabinets. In the hallway walking to class, sometimes sheseemed unbalanced if staff was not physically prompting her. She would walk on anangle. (R1547-1548) Bethany Powers testified that the student had abbreviated attendance in Englishand Earth Science and the short amount of time had an effect on her staying with theclass as to what they were doing. Work had to go home. And when work went home, itwas promptly returned and done. But it was minimal in comparison to what the class wasdoing (R1550) The student would miss the beginning social interaction time when shewould arrive late to class. "Her curriculum was minimal to the regular education
    • curriculum and it was a smaller percent of what the regular education class was covering"(R1551) Looking at a calendar for the months of September, 2003 and October, 2003created by Jennifer Peterson from data conveyed to her by Bethany Powers (EXHIBIT 59AND 60), Bethany Powers testified that the student was absent 16 days and was in schoolfor all six periods on five days. On October 16, 2003, Vic Morris and Alice Belgrade observed the student in twogeneral education classrooms and then met privately with Jennifer Pearson and BethanyPowers Vic Morris recalled that, given the degree of concern and frustration expressedby Bethany Powers, he was concerned about whether there was adequate monitoring andreview of the behavior strategies and whether other modifications might be necessary.On the very day that Vic Morris and Alice Belgrade observed the student, her EarthScience teacher, Hank Thiele, testified that the student was not having a particularly goodday in the classroom. He recalled that it was the only day where he came close toactually asking Bethany Powers to remove the student. Unusually he would let Ms.Powers determine if the student would remain but on that particular day the studentsvocalizations "...were extreme, almost to the point where class could not continue". Ms.Thiele testified that in the absence of Vic Morris and Alice Belgrade, he would haveasked that the student be removed from his classroom. (R230) On bad days, Mr. Thieletestified that the students in neighboring classrooms could not concentrate because of thestudents vocalizations. (R231-232)8. NOVEMBER 5, 2003 IEP MEETING Vic Morris attended the IEP meeting and expressed his concerns about thestudents current placement and concurred in the IEP teams conclusion that the studentsplacement should be changed to a self contained special education placement. VicMorris recalled that Alice Belgrade appeared to be of the opinion that the root of thestudents problem in her current placement was staff failure to effectively implement thebehavior plan. Vic Morris did not believe that he could agree with that opinion based onhis one observation in October 2003. Vic Morris further stated that in his opinion, abehavior intervention plan based on flawless or very high levels of implementation as arequirement of their effectiveness is generally going to be ineffective in school settingsbecause there will always be errors in implementation. In addition, Vic Morris did notbelieve that the environmental supports to assist and level out those errors were availableat Conant High School. (R2274) In Vic Morriss opinion, a self contained specialeducation placement would be more effective in helping the student deal withvocalizations and any physical type of behaviors where the student could harm herself orpossible harm other students or staff. (R2277-2278) At the hearing, Jennifer Pearson stated that in November, 2003 she and the IEPteam had not changed their opinion as to the most appropriate education placement forthe student. Rather, Ms. Pearson and the IEP team believed that the student required aself-contained special education classroom similar to the program operated by NDSEC at
    • Lake Park High School. At the hearing, Ms. Pearson testified that the student required aself-contained setting for the following reasons: One, looking at meaningful goals, a lot of these goals are related to functional aspects that are done within a self-contained environment. When the student was not within the regular classroom and looking at the amount of time she spent within the Regular Ed classroom, the student was isolated with a teacher and teacher assistant. There is not a multiple- needs program at Conant High School to serve her needs. And I feel that the student was spending a lot of time within the separate environment from the classroom based on the disruptive vocalizations, based on the self-injurious behaviors. My concern was that overall she was spending minimal amount of time in the regular education environment and still continuing to exhibit self-injurious behaviors and disruptive vocalizations that effected her ability to participate. (Jennifer Pearson R2768-2770) So after the spring of her junior year, I still would not describe that as successful. The concerns that led me to believe that the student requires a self-contained multiple-needs program are that the student still continues to have disruptive vocalization that warrant removal from her classes; that she was in her Regular Ed classes less than 15 percent of the time and that is an approximation; that when she was not in her classes, she was in, in my wording, an isolated environment in her work room with a teacher and a teacher assistant; that the goals that she was working on, although functional in nature and that she had made progress compared to her regular curriculum, that I dont have expectations that she applied to the same standards as the regular education classroom. In my eyes it is still not meaningful to the regular curriculum. That the student still continued to exhibit self-injurious behaviors, disruptive vocalizations and attempts to hit and head butt staff and on occasion did so, despite intervention to monitor her proximity, despite the training that staff received in the spring. (Jennifer Pearson R2776-2778) The IEP team changed the students placement to a self-contained classroom andon November 13, 2003, counsel for the parents asked that the due process proceedings bereinstated. On November 14, 2003, CAROLYN ANN SMARON was reappointed ashearing officer. The prehearing conference took place on December 4, 2003. Aprehearing conference report was issued and subsequently amended on January 6, 2004identifying the following issues and proposed remedies: PARENT ISSUE: The parents allege that the local school district has failed to comply with the terms of a Settlement Agreement entered into by the parents and the local school district on November 5, 2002 including but not limited to the following issues:
    • 1. Paragraph 3 of the Settlement Agreement provided that the partieswould utilize the services of ALICE BELGRADE, VIC MORRIS, DR.MARK LENZ and DR. BENNETT LEVENTHAL for the purpose offormulating, implementing and revising an effective behavior interventionplan. The parents allege that the local school district failed to implementappropriate functional behavioral analyses or behavior intervention plans.2. Paragraph 4 of the Settlement Agreement provided that therewould be modifications of the content or method of delivery of thestudents Individualized Education Plan as an outgrowth of the functionalbehavior assessment and behavior intervention plan. The parents allegethat the school district failed to develop an appropriate IndividualizedEducation Plan including related services e.g. speech/language,occupational therapy, updated assistive technology and sensory integrationevaluations.3. Paragraph 5 of the Settlement Agreement provided that the panelof experts would train staff in understanding the characteristics of RettSyndrome, would train the staff in behavior management strategies andwould train the staff in non-violent safety procedures prior to the initiationof her program. The parents allege that the local school district personnelfailed to cooperate in attempts to provide the foregoing training to them.4. Paragraph 9 of the Settlement Agreement provided for a panel ofexperts to devise a plan for the students return to Conant High School.The panel of experts were unable to reach consensus upon a plan. Theparents allege that the least restrictive environment for the student isConant High School with appropriate supports and related services inplace.5. The parents allege that while the student was attempting to returnto Conant High School on a full time basis, the local school districtexcluded the student from using the swimming pool.6. The parents allege that at no time subsequent to the SettlementAgreement has the local school district provided a free appropriate publiceducation to the student.REQUESTED REMEDY:1. A finding that the local school has denied this student a freeappropriate public education in the least restrictive environment.2. An Order that the students placement should be Conant HighSchool.
    • 3. An Order that the local school district employ an independent behavior specialist and such other specialists as the parents and the identified independent behavior specialist determine are necessary, to develop an appropriate Individualized Education Plan for this student. 4. An Order that the local school district employ the independent behavior specialist to (a) provide on-going training, monitoring, and consultation to local school district staff and to the students parents; (b) have on-going authority for the implementation of the students educational program at Conant High School including the ability to approve staff hired to work with the student, classes selected by the student, and all other issues related to her educational program. In effect, the parents ask that the independent behavior specialist act as special master in the general supervision of the students program. 5. An Order that the local school district provide two years of compensatory education to follow her successful graduation or aging out of Conant High School including educational, vocational, therapeutic and other services. APPLICABLE LAW The law applicable to the facts in this case is set forth in the Individuals withDisabilities Education Act (IDEA), 20 USC §1401 et seq., the federal regulations toIDEA, 34 CFR Part 300, the School Code of Illinois, 105 ILCS §5/14-8.02 et seq., andthe applicable state regulations, 23 Ill.Admin.Code Part 226. The local school districtbears the burden of proof that at all times relevant it properly identified the nature andseverity of the students suspected disabilities and if appropriate, that it offered thestudent a free appropriate public education in the least restrictive environment, consistentwith procedural safeguards. In Board of Education, Hendrick Hudson Central School District. v. Rowley,.458 US 176 (1982) ("Rowley"), the Supreme Court set forth a two pronged test forevaluating whether or not the school district has complied with applicable specialeducation laws - there must be compliance with statutory procedures and then theindividualized education program (IEP) developed through such procedures must bereasonably calculated to enable the student to receive educational benefit. APPLICATION OF LAW TO THE FACTS In Board of Education, Hendrick Hudson Central School District. v. Rowley,.458 US 176 (1982) ("Rowley"), the Supreme Court set forth a two pronged test forevaluating whether or not the school district has complied with applicable specialeducation laws - there must be compliance with statutory procedures and then theindividualized education program (IEP) developed through such procedures must bereasonably calculated to enable the student to receive educational benefit. In Kevin T. v.
    • Board of Education of Evanston Committee Consolidated School District, 36 IDELR153 (N.D.Ill.2002) the Northern District of Illinois further clarified the proceduralrequirements of Rowley. In Kevin T., the hearing officer made a conclusory finding thatthe alleged procedural violations, if they were violations, could have been dealt with atthe time or through due process proceedings. The hearing officer found that the parentswere able to fully participate in the students education and thus concluded that thealleged procedural violations did not violate the students right to a free appropriatepublic education ("FAPE"). The court found that while parental participation is one ofthe key components in assessing procedural violations, the fact that the parents hadadequate notice and were able to participate in the proceedings does not end the inquiry.In addition, one must inquire further to determine whether the alleged proceduralviolations deprived the student of an IEP or resulted "in the loss of educationalopportunity". Kevin T. In the instant case, the parents cannot seriously contend that there were anyprocedural errors as it is uncontroverted that the parents of the student, with theirattorney, attended the August, 2002, August, 2003 and November, 2003 meeting andparticipated in the preparation of an Individualized Education Plan (IEP) during eachmeeting. In fact, the evidence is overwhelming that the parents were maximally involvedin the IEP process, its implementation and modifications. The first prong of the Rowleytest was satisfied and the focus moves to the second prong: were the IEPs reasonablycalculated to provide educational benefit and the corollary, did the student receiveeducational benefit. It would appear that the parents are focused on the August, 2003 IEP meetings intheir contention that the school district failed to formulate and implement a cohesive,effective behavior intervention plan (BIP), failed to address all of the students needs,failed to provide the student with a transition or extended school year (ESY) services, andfailed to provide her with appropriate related service. However, the IEP which wasimplemented in Spring 2003 was the IEP developed in August 2002 as amended by theprovisions of the Settlement Agreement in November, 2002. . The parents contend on afairly consistent basis that they were denied "meaningful" participation in the creation ofthe three IEPs. On a fairly consistent basis throughout the hearing, the parents attackedthe three year evaluation of the student in general and the psychological evaluation by theUniversity of Chicago in particular. Well "meaningful" is in the eye of the beholder andthe facts of this case tell another tale. In Kevin T., the court found that it had to assess the students intellectualpotential, given his disability, and then determine the academic progress the student madeunder the IEPs designed and implemented by the district. In the instant case, there is aserious disagreement as to whether the students intellectual potential was ever correctlyassessed. Even more confounding, it would appear that there is a serious disagreement asto whether one can properly assess the intellectual potential of any student with RettSyndrome.
    • The student suffers from a rare pervasive developmental disorder known as RettSyndrome characterized by severe communication deficits, hand stereotypies, andapraxia. From a young age, the student had clear developmental delays in all areas,engaged in self-stimulation, showed an impaired ability to concentrate and to attend, hadseverely affected expressive language skills, and had frequent shifts from topic to topicwith little interruption. It is clear that the school district knew that the student had RettSyndrome before she entered Conant High School and accordingly prepared an IEP thatmapped out how the school district would provide the student with an IDEA-complianteducation during her freshman year. Based upon the information then available, theschool district developed an IEP, created a special workspace for the student, and placedthe student with her own special education teacher in regular education classes. Althoughthere has been no issue raised as to the IEP which was in place during the studentsfreshman year, behavioral data suggested that the student spent more than 50% of her daywithin the work room with her behavior vacillating between cooperative and compliant toagitated and noncompliant. During the second semester of her freshman year, the student was absent a total ofsixteen days, due to family vacations, illness, out-of-school suspensions, and the testingat the University of Chicago. The students last day of school was May 21, 2002 aftertwo staff members sustained nasal fractures. Despite the creation of a "work room", afunctional assessment of the students behavior and the creation of a behaviorintervention plan, the students behavior clearly interfered with the ability of the schooldistrict to provide an education to the student. It is clear that the situation was notworking! At the hearing, Bennett Leventhal and Marrea Winnega were questioned quiteintensely about their multidisciplinary evaluation of the student completed in August,2002. Both Dr. Leventhal and Dr. Winnega persisted in their belief that they were notconcerned about the difficulty in assessing the students level of cognition. I think we have been quite clear about this repeatedly that that wasnt our major concern at the time. And we felt that her behaviors were so disruptive that it made it difficult to know what was -- what her real capacity was. And we thought -- felt strongly that if we get her behaviors under control, we might have a better sense of her function. I dont think anybody elses work that I have seen thus far has suggested that there are young women who have who are in the normal range of intelligence or the average range of intelligence. So we are still talking about a syndrome that is largely confined -- that largely includes people that have significant cognitive impairment. Much the same is true for autism. I mean, more than 75 percent have cognitive impairment. Why that is, what that means I think is still an open question. (Leventhal R4011,4021) Dr. Winnega testified that the multidisciplinary evaluation recommended afunctional analysis of the students behavior and development of a new behavior plan.The Clinic recommended that the analysis and behavior plan should be developed in a
    • stable very controlled environment with a particular focus on the students aggressivebehaviors. Regarding placement, the Clinic recommended a highly structured, self-contained setting that could develop and operate an intensive behavioral intervention foraggressive and self-injurious behavior while also addressing fundamental skills such asbasic compliance training, a self-contained special education program that has verystrong behavioral training capabilities. It was the judgment of Dr. Winnega that theintensive behavior management that the Clinic was suggesting could not be done in aregular education setting and could not be implemented at Conant High School (2189) Inlight of subsequent events during Spring 2003, Dr. Winnega seems prescient. With all of this as a background, the parties participated in an IEP meeting onAugust 23, 2002. The IEP team concluded that it was difficult to fully appreciate thestudents cognitive potential and other capacities because her behavior grossly interferedwith her ability to respond and the ability of staff to work in close proximity to her.There was absolutely nothing in the testimony of Bennett Leventhal that was inconsistentwith the conclusions of the IEP team. Marrea Winnega testified for days and in greatdetail about her testing of the student - where the testing took place, who was there, whattests were administered, what the students cognitive levels were, what the "ageequivalence" levels were, whether or not the tests were completed, etc. All of thattestimony is a "red herring" in that it was the students behavior which interfered with hereducation. It should be noted that there has been a pretty persistent disagreement between theparties as to the students cognitive levels with the University of Chicagomultidisciplinary team concluding that the student functions at the level of borderline tomoderate mental impairment and the parents insistence and the insistence of theirbehavior specialist, Alice Belgrade, that the student functions at a much higher level. Dr.Alan Percy, produced by the parents as a medical expert in the evaluation and treatmentof girls with Rett Syndrome, testified that available literature suggests that girls with RettSyndrome typically have a mental age at the 8-10 month level. Just viewing thevideotape of the student leads one to the inescapable conclusion that the student functionsat a high level than that. However, it was the students behavior during her freshmanyear which was before the August 2002 IEP team. It was the IEP teams belief that untilthe students behavior was under control, she could receive no academic benefit fromplacement in regular education classes. After developing goals and objectives, whichwere functional in nature, the IEP team directed that the student should be placed in amore restrictive self-contained program that intensely focused on implementation of abehavior management plan to address the students maladaptive behaviors ("alternativeday school"). Pursuant to the Settlement Agreement, the parties ultimately delegated to ALICEBELGRADE, VIC MORRIS, DR. MARK LENZ and DR. BENNETT LEVENTHAL("the Panel") the responsibility for formulating a plan for the students return to ConantHigh School. The parties agreed that Alice Belgrade, Vic Morris and Mark Lenz woulddevelop a functional analysis of the students behavior and a Behavior Intervention Planto facilitate the students return to Conant High School with Vic Morris serving as the
    • coordinator for the purpose of scheduling and coordinating the activities of the Panel.Finally, the parties agreed that the plan for the students return was to reflect the"consensus" of the Panel and in the event that the Panel could not reach "consensus", thedispute would be returned to an impartial due process hearing officer or to JudgeKennelly in federal court. It is interesting to note that in the development of the settlement agreement,counsel for the parents noted that a requirement of unanimity could be troublesome inthat one Panel member could block the students return to Conant High School. Itappears that the foregoing language regarding "consensus" was a response to thisconcern. What none of the parties anticipated was that by June, 2003, the Panel would bein agreement that the student should not, in fact, return to Conant High School. Theagreement stated that the students return to Conant High School was a "goal" but no oneanticipated that by June, 2003, the Panel itself might view that "goal" as unachievable.And, finally, none of the parties anticipated the resignation of one of the Panel membersat the August 2003 IEP meeting. Dr. Leventhal understood that the parties had agreedthat a panel would be assembled to monitor and make recommendations about thestudents continuing education. From the beginning, Dr. Leventhal had reservationsabout whether the student could be reintegrated back into Conant. (R3934-3935) The panel communicated among themselves either in person or by telephone or byemail. They met on December 11, 2002 to establish an initial course of action. They meton December 17, 2002 to review the students file and allocate responsibilities among thepanel members. The panel agreed to use and rely upon the on-going data and summarydata that Alice Belgrade had compiled and continued to compile during her work with thestudent at her home. Dr. Leventhal was to review the medical records and provideconsultative support. Vic Morriss role was to review the environments available atConant High School and to help develop behavior support strategies that might be helpfulat Conant. From the start, the panels activities seem star-crossed: • the panel members experienced problems in communicating quickly and reliably. • Vic Morris placed heavy reliance on "precursory behaviors" as opposed to Alice Belgrades reliance on the environment as an antecedent to targeted behavior. Further, in Alice Belgrades work with the student in her home she had found no significant correlation between precursory behaviors and the occurrence of targeted behaviors. Consider the dilemma then of Conant High School when they were told that they should look for precursory behaviors as a predictor of targeted behavior. • Vic Morris completes an environmental assessment of a crowded high school building and notes that the distance between the students workroom and her English class is far away and that there are no bathrooms available for the students use should she require the need for toileting outside the workroom. Apparently the distance was not a "deal breaker" for the students return to Conant High School although counsel for the parents questioned school district witnesses endlessly about the distance at the hearing.
    • • the data collection form utilized by the educators does not defined "intense vocalizations" despite clear knowledge that the student had engaged in sustained "intense" vocalizations • despite Alice Belgrades belief that a functional analysis of behavior should consist of at least five observations to assess whether there is a pattern to behavior with observation for at least a two hour period, none of this takes place as a predicate to development of the behavior intervention plan. • On February 14, 2003, Alice Belgrade prepares a draft of a behavior intervention plan for the panels consideration. Instead of a meeting of the panel to discuss the draft to develop a final version, Vic Morris prepares a behavior intervention plan of his own, sends it off to the school district and uses it in his staff development program on March 11, 2003. Unknown to Vic Morris, Alice Belgrade does not like the plan because she found it difficult to follow and believed that it would be difficult for others to follow. Alice Belgrade now appears prescient as by April 7, 2003, Vic Morris was becoming concerned that the district staff felt unable to implement or develop strategies for the student without consulting or obtaining the approval of the panel. • Vic Morris clearly believed that as coordinator of the panel he could "speak" for the panel, often times creating confusion when he had not actually "checked in" with the other panel members. Consider his subsequent testimony at the August 7, 2003 IEP meeting where he reports that the panel believed that student had done well during her thirty-five days at Conant High School during Spring 2003. Clearly Vic Morris was entitled to that opinion, but the representation that his opinion was that of the panel was clearly confusing in light of the opinion of Bennett Leventhal expressed during a panel conference call on June 11, 2003. • Alice Belgrade recalled that she "assumed" that the panel would develop criteria for behavior which would lead to an expanded day for the student. However, Ms. Belgrade also recalled that this area was never discussed thereafter. The focus of the panel quickly shifted to behavior assessment/planning and writing a behavior plan by three panel members who seldom could schedule time together. (R7732) • During the Spring, 2003, Vic Morris had a growing impression that the staff felt that they were not able to do anything or make any decisions concerning the students program unless the decision came from the panel. Vic Morris arrived at the impression because of the fairly consistent questions and requests for information which came from the team via Jennifer Pearson. (4429) Vic Morris did not believe that it was desirable for the panel to serve in the role of approving all strategies, interventions and training for the staff to work with The student. (4236-4237) It seemed apparent even during the hearing that the school district staff and Vic Morris had completely different "impressions" as to the role of the panel. The student returned for three periods to Conant High School on April 21, 2003.Everyone seems to agree that Jean Mansfield Link was a gifted special education teacherwho had a special rapport with the student. However, during his work on the panel, Dr.Leventhal recalled that he reviewed data and various communications and recalled thatthere were some questions about the persistence of the behaviors, the physical behaviors,
    • self-abusive and aggressive behaviors toward others and then the vocalizations whichwere a serious problem as well. (R3937-3938) There was some concern about questions about how much time she spent in the regular classroom and how much she spent in her area. There are rooms that have been put together for her with her teachers away from the other kids. And how so-called good day and not so good days and how many of each there are. So we tried to get some sense of what was the predominance of her activities and how it was playing out and what she might actually be learning. (Leventhal R3938) Once the student returned to Conant High School, Ms. Link testified that it wasvery difficult to assess the student academically because the time dedicated for academicuse was often occupied by dealing with her behaviors (R5794) She recalled that she wasable to continue working with the student when she presented with agitated orproblematic behavior, "at times" (R5465) She attempted to continue working becausethey did "not want self-injurious behavior, vocalization to be a means of escape from atask" (R5466) Clearly nothing of any academic value is occurring because of thestudents behaviors. Jean Link testified that there was a definite relationship between the effectivenessor ineffectiveness of the students ability to communicate and the behaviors which mayhave followed. "The student would become frustrated as any of us would whensomebody wasnt understanding what she wanted or what she was trying to say...andthere were times when we werent getting it. We didnt understand what she was tellingus. And she would get frustrated, and that would result in behavior". It seems clear thatthe behavior intervention plan was not working in the current environment. Jean Link testified that in her opinion the other students would be startled anduncomfortable when the student would vocalize in English class ("it was a quietenvironment and, you know, she could vocalize pretty loudly" R5655) Ms. Link testifiedthat the students vocalizations played a big role in her ability to remain in her Englishclass. If the student was vocalizing very loudly, she, obviously, could not keep thestudent in the room because it was disruptive to what was going on with all the otherstudents (R5799) Juxtapose this testimony with the testimony of the English teacher,Scott Altergott, when he recalled that during the spring semester the student had been"restrained" in his classroom - the special education teacher had to hold on to her armsbecause the student was either hitting herself or jumping up and down and swinging herarms or hitting herself. (R901-902) The disruptive nature of the students attendance inthe English class cannot be ignored. With regard to the students educational progress, Jean Link recalled that most ofthe English academic instruction occurred in the self-contained workroom. (R5792)Most of her IEP goals were attempted in the work room because it was hard to do in the
    • classroom without being disruptive. (R5812) Ms. Link also testified that it was verydifficult to assess the student academically as the time dedicated for academic use wasoften occupied by dealing with her behaviors. Further, Ms. Link testified that it wasdifficult to assess the student because it was hard to tell at times which choice she wasreally making, where she really meant to point vs. where she actually did point. Ms. Linkalso testified that the student would vocalize when she would feel distracted or overstimulated by sound and thus the work room, which was quieter, was a place where thestudent could focus more on her academic progress. (R5813) Following are direct quotes from the testimony of Jean Link regarding thestudents thirty-five days at Conant High School in Spring 2003: the majority of missed classes can be directly attributable to physical needs" - some sort of pain, needed to use the rest room, she was hungry, just physical issues that we determined from asking her questions (R5668) they used "positive feedback" in the classroom based on her observation of how Alice Belgrade worked with the student. The "positive feedback" was snacks but "alot of times the student was then distracted by food...we were hesitant to use it too much because it seemed like she was just focused on the food" (5673) the majority of the teachers contact with the student has been social - had been of a social nature - this is largely due to the fact that most of students instruction was provided directly by her inclusion facilitator as well as her dedicated classroom teaching assistant - Donna and I provided most of her instruction (R5679) There was a plan for the student to have actual interaction with her English teacher on a daily basis by having the teacher ask her a question at some point during the class that had been preplanned with a preplanned response. But that did not work out because sometimes the teacher wasnt ready to ask the question that he had prepared for the student, if the discussion had gone longer or if the student had to leave, and sometimes the student was not present for the planned interaction. (R5682) "although The student has spent a minimal amount of time in the school environment, 35 days total, she has responded positively to her shortened schedule and individualized program of instruction" means "in the amount of time that I had to observe her, I think she did very well" (R5684) However, Ms. Link also recalled that when she worked with the student in her home, they were able to do alot more academic work. (R5684-5685) The main difference for the differentiation in the academic progress that the student was able to free to set her own schedule ...at home schedules were more flexible than in a mainstream school. (R5793) "The student has a great of deal of physical needs as well as difficulty with blocked communication. She has made a phenomenal effort to overcome these
    • obstacles utilizing the support offered to her" - she tried very hard. But if the student was frustrated "...she would get to a point where she was upset or angry because we didnt understand her or werent getting the message that she was trying to give us. And sometimes she would - frequently, it was self-injurious behavior, she would hit herself, get upset. That was her way of communicating she was upset or frustrated with us" (R5693-5694) Counsel for the parents asked Ms. Link if she would have added anything to thestudent "strengths" section of the August 2003 IEP. Ms. Link responded that she wouldhave inserted a statement that she tried to get the student to class as much as possible.Recall that Ms. Link testified that of the 35 days that the student attended Conant in theSpring 2003, there were only two of those 35 days that the student stayed in the Englishclass for the full fifty minutes. Her charting of the students behavior on a daily andweekly basis tell the tale - for all practical purposes the student was receiving"instruction" in an isolated setting. Prior to her exit from the school district, Ms. Link completed a reportdated June 13, 2003 about the students progress on her August, 2002 IEP goals.Note the functional nature of the goals and Ms. Links comments: 1. The student will semi-independently improve understanding of "who" questions. According to Ms. Link, the student has "demonstrated the ability to respond quite accurately in the academic setting. The student is approximately 90% accurate with her responses in a social setting when she is calm and all of her physical needs have been addressed. The 90% declines significantly when the student is agitated. 2. The student will develop proper hygiene for lunch and toileting. According to Ms. Link, the student can wash her hands with soap and water with maximum assistance. The student needs hand-over- hand assistance to complete all steps with the exception of removing the paper towels from the dispenser. Ms. Link reported that the student requires verbal and physical prompts. The objectives did not specify how much assistance so Ms. Link indicated the student needed "maximum" assistance and then with that, she met those goals. 3. The student will respond to a personal greeting. Ms. Link qualifies her statement that the student has met this goal by stating that the "majority of missed attempts do occur when the student is agitated or distracted by physical needs" 4. The student will demonstrate the ability match objects/pictures. Ms. Link clearly states that the student met this goal with and without physical assistance.
    • 5. The student will improve her sorting skills. Ms. Link clearly states that the student met this goal with and without physical assistance. 6. The student will improve functional self-care for more independence in the school as seen by using spoon with moderate assistance for feeding. Ms. Link clearly states that the student met this goal with and without physical assistance. 7. PT Goal: The student will demonstrate the ability to transition from one position to another for functioning within the school environment. 8. Speech Goal: The student will demonstrate 4 communication skills 9. The student will be able to function safely in the school building - need to develop after "functional analysis" 10. AT Goal: With assistance and the use of no tech, low tech and high tech, the student will share home happenings with others. 11. The student will demonstrate sustained attention to tasks individual then group focused activities (requiring minimal fine motor coordination. According to Ms. Link, The student met all of the objectives in an individual setting but not in a group setting. (R5721) What is striking about Ms. Links testimony and the documents created by her arethe almost complete absence of any comments about the students educationalperformance. In addition, Ms. Link testified that she evaluated the student on her "good"days, remaining silent about the "bad" days when the student exhibited negative behavior.Ms. Link testified that the student was not able to do many things when she was in thecourse of having a bad day. I mean, certainly, she had behavior issues. I mean, I am not going to discount that she didnt have bad days. But most of the data that was taken as far as, you know, if the student was able to scoop, if she was able to answer questions, those kinds of things were on days where she was having good days. So I guess if that is slanting it in a positive direction, then I guess that is what I did. (Jean Mansfield Link R5733-5734) Despite the positive image portrayed in Ms. Links report of the student progresson her IEP goals, it is clear that the student spent little time in her academic classroom. Itseems self-evident that the students behavior interfered with her receiving any actualeducational benefit from her time at Conant High School and that none, in fact. occurred.However, during this hearing, the parents seem clearly focused on a different definition
    • of "educational benefit", one that focused on the students social interactions with herpeers. Bennett Leventhal, Alice Belgrade and Vic Morris participated in a conferencecall on June 2, 2003. Bennett Leventhal recalled that he participated in the discussionsrelating to the creation of a report, to be largely authored by Vic Morris, which wouldprovide the parties with the panels thinking. Bennett Leventhal clearly believed that thepanel members had concluded that it was not in the best interest of the student or theother students at Conant High School that she return to Conant High School in the Fall,2003. By June 2, 2003, the panel was interested in setting a date to discuss a way to endthe panel. Vic Morris and the other members of the panel had concluded that the processwas complicated and time consuming and there were probably better ways to support thestudents needs. Some members of the panel wanted to gather information about othereducational placement options within the school district and in fact observed the Kirkplacement but they were stopped cold by counsel for the parties. The panel was told tofocus on the students return to Conant High School. It is clear from the testimony of VicMorris and Bennett Leventhal that on June 2, 2003 two of the three panel membersbelieved that the student did not belong at Conant. It is also clear from the testimony ofBennett Leventhal that both he and Vic Morris believed that Alice Belgrade had agreedwith them on June 2, 2003. Why else would the panel start to investigate other placementoptions? It is at this point that things become strange: there is a panel charged withdeveloping a plan for the student to return to Conant High School and the panel no longerbelieves that the student should return! Something odd seemed to have happened during the summer of 2003. Opinionsheld on June 2, 2003 seemed to change for no apparent reason. Alice Belgrade prepareda summary of the June 2, 2003 telephone conversation that was at odds with what hadbeen discussed by the three panel members. Opinions were offered which suggested thatthey were based on "data" and the "data" did not support the opinion (recall Vic Morrisstatement that the student did well during the spring vs. Jean Links behavior logs) Bothpanel members were baffled when Alice Belgrade subsequently recommended at theAugust 15, 2003 IEP meeting that the students time at Conant High School be increased.And then to further confound the parties, Vic Morris resigned. Prior to his resignation on August 7, 2003, Vic Morris presented a "report" whichwas a rambling email containing points of agreement and disagreement among panelmembers. Unknown to any members of the IEP team was the fact that neither AliceBelgrade nor Bennett Leventhal had approved the email as a "report" of any kind. Thedocument was intended to provide an update and clarification of several issues andconcerns regarding the students program from the perspective and consensus of thepanel. The "report" did not contain any specific panel recommendation about the numberof classes that the student would attend in the Fall, 2003. (R2263). The panel neverreached any consensus about what would happen in the Fall, 2003. The panel was in no
    • position to recommend anything other than Conant because they had been advised that itwas not within their "job description" to investigate any placement other than Conant. The educational members of the IEP team were clearly between "a rock and hardplace" at the August 15, 2003 IEP meeting. They were presented with a panel "report"which took no position on the students return to Conant High School. They were greetedwith the resignation of Vic Morris. Alice Belgrade was the only panel member whoattended the August 15, 2003 IEP meeting and she advanced the position that the studentshould return to Conant High School on a full-time basis. On the advice of counsel theConant High School educational staff returned the student to Conant High School andthey "negotiated" the number of periods to six. In this hearing officers opinion, the IEPteam should have concluded on August 15, 2003 that the students placement should bechanged to a very intensive intervention setting that was highly structured with a largegroup of people who are experienced in working with a student as complex as thisstudent i.e. self-contained multiple needs program. There is more than enough testimony,emails, and documents to support a conclusion that the student received no academicbenefit from her attendance at Conant High School in the Spring 2003 and receivedminimal benefit from the behavior intervention plan developed by the panel - the studentvocalizations could be suppressed for about a minute and a half!, the student still couldnot be maintained in a classroom without disrupting the classroom. Instead, inacquiescing to the demands of the parents and their behavior expert, the students day wasdoubled with pretty predictable results. The true tragedy is that no one could foresee thepainful bowel obstruction and no one could foresee the effect of increases in the studentsanti-depressant and anti-psychotic medications (Affidavit of Jane Feldman, the studentspsychiatrist) The student was scheduled for six classes in the Fall 2003: two academic classes -English and Earth Science, Foods, Physical Education, Lunch and a Resource Period.Jean Mansfield had resigned and the school district had not retained the students 1:1aide. The student had a new special education teacher (Bethany Powers) and 1:1 aide(Nora Mulcrone) with a 1:1 aide backup (Debbie Osenberg) In the beginning of the school year, Bethany Powers testified that the studentwould walk to her classes. She testified that it progressively took the student longer toget to each class, eventually taking 10-20 minutes even to get to class, with the studentstopping, taking a few steps, stopping, and so on. When in class, the student would humquietly to herself. Other times, she would vocalize with a quick burst of vocalization.And then at other times it would be a more sustained vocalization where it lasted forseveral seconds, a minute nonstop. The intensity of the vocalizations seemed to increaseas school went on as well. She seemed to get louder. She was so loud that you couldhear her in the hallways. (R1503-1504) In response to the vocalizations, BP would lookto the reactive strategy plan for vocalizations. She would follow each and arrow down incommunicating with her in trying to minimize those vocalizations. If the strategies didnot work, the student would be removed to the hallway and the student would be asked ifshe wanted to go back to her workroom or if she wanted to be alone. Ms. Powers testified
    • that there never was a plan that the student would return to the workroom after everyclass. Rather, it just happened based on her needs and behavior (R1636). The student attended two class periods on the first day of school, the second dayshe attended four periods, and on the third day of school (8-29-03) the student attendedall six periods. In her testimony, Ms. Powers went through the setting events, antecedentbehavior, etc. of the behavior data sheets. For 8-29-03, she testified that the "settingevent" was that LR had her period and had not gone to the bathroom. As they werewalking down the hall, the student head-butted her. At 10:40 a.m. the student grabbed atthe teacher assistants glasses, scratching her face. At 11:30 a.m., Ms. Powers was tryingto toilet the student and the student head-butted Ms. Powers. There were no precursorybehaviors noted in any of the foregoing incidents. Consider the testimony of AliceBelgrade that she had never noted any precursory behaviors when she worked with thestudent in her home. Imagine that you are Bethany Powers and you have been told thatthere were precursory behaviors! With the exception of August 27-29, 2003. Bethany Powers testified that sheprepared weekly summaries of the students behaviors and had the weekly summariesavailable for the weekly team meetings on Thursdays. The record is clear that, again, thestudent spent very little time in her academic classrooms. Ms. Powers testified that thestudent would miss class due to behaviors and would return to her workroom. Ms.Powers testified that upon her return to her workroom, the student would continue thebehaviors thus preventing Ms. Powers from continuing the academic lesson in theworkroom (R1711-1712) From the very beginning, Bethany Powers noticed that the student behaveddifferently than she had behaved in the Spring 2003. Unknown to Ms. Powers, thestudent was harder to wake up, did not eat as well and did not smile as much (R7523)The student was absent from school from September 8-12, 2003 due to an impactedbowel. Bethany Powers testified that there were days when the student appeared off-balance, a little bit unsteady. There was a time when she fell back into a table. And therewere times where she would run back and forth in the workroom. And when she wouldrun, she would get close to the paper towel holder, close to cabinets. In the hallwaywalking to class, sometimes she seemed unbalanced if staff was not physically promptingher. She would walk on an angle. (R1547-1548) Looking at a calendar for the months of September, 2003 and October, 2003created by Jennifer Peterson from data conveyed to her by Bethany Powers (EXHIBIT 59AND 60), Bethany Powers testified that the student was absent 16 days and was in schoolfor all six periods on only five days. On October 16, 2003, Vic Morris and Alice Belgrade observed the student in twogeneral education classrooms and then met privately with Jennifer Pearson and BethanyPowers. Vic Morris recalled that, given the degree of concern and frustration expressedby Bethany Powers, he was concerned about whether there was adequate monitoring andreview of the behavior strategies and whether other modifications might be necessary.
    • On the very day that Vic Morris and Alice Belgrade observed the student, her EarthScience teacher, Hank Thiele, testified that the student was not having a particularly goodday in the classroom. He recalled that it was the only day where he came close toactually asking Bethany Powers to remove the student. Unusually he would let Ms.Powers determine if the student would remain but on that particular day the studentsvocalizations "...were extreme, almost to the point where class could not continue". Ms.Thiele testified that in the absence of Vic Morris and Alice Belgrade, he would haveasked that the student be removed from his classroom. (R230) On bad days, Mr. Thieletestified that the students in neighboring classrooms could not concentrate because of thestudents vocalizations. (R231-232) In Beth B. v. Van Clay, 211 F.Supp.2d 1020 (N.D.Ill.2001) the court held thatalthough Congress made a clear policy choice that disabled students benefit frominteraction with non-disabled peers and should do so to the maximum extent possible, itdoes not override the primary obligation to provide educational benefit to the student. Adistrict need not, indeed may not, place a child in a program that does not confereducational benefit simply because it is less restrictive. Beth B. at 1026. In the instantcase, the school district, recognizing this obligation, chose to discontinue the placementat Conant High School on November 5, 2003. Similar to the disputants in Beth B., each party here claims that their placement isthe only one that will provide the student with any benefit. Rowley defines a schooldistricts obligations as "providing personalized instruction with sufficient supportservices to permit the child to benefit educationally from that instruction. Rowley at 203.The school district, when confronted with the students behavior during her freshmanyear, went outside for a more sophisticated assessment of this student. This is the carefulanalysis required of school districts when it exercises its responsibility to deal with awide range of disabilities. The school district clearly saw the need and acted upon it. This student has a rare disorder. The hearing officer listened to the testimony ofDr. Alan Percy who was accepted as a medical expert on the research, diagnosis andtreatment of girls with Rett Syndrome. The hearing officer listened to the testimony ofProfessor Richard Van Acker who was accepted as an expert in the field of "bestpractices" in educational interventions for children with Rett Syndrome. However, it wasclear from the testimony of all of the educational professionals that they did not view thestudent as a "disorder". Rather the school district developed Individualized EducationPlans for the student who appeared within their building - a student with limited ability tocommunicate without utilizing augmentative communication, a student whose behavioractively interfered with her own education and the education of her fellow students and astudent with limited body control (apraxia). The school district exercised its professionaljudgment as to how best to educate the student. The school district presented sufficient evidence at the hearing that its proposedplacement will likely benefit the student. The parents seem to be advocating a placementat Conant High School because it is the students neighborhood school. In Doug White v.Ascension Parish School Board, 343 F.3d 373 (5th Cir. 2003), the parents of the
    • student asked that the student be transferred to his neighborhood school contending thatthe transfer would enhance his social development, including allowing him to attendschool with neighborhood children. The court focused on Rowley and its requirementthat the IEP be reasonably calculated to enable the student to receive educational benefit.In refusing to grant the relief requested by the parents, the court stated that pursuant toRowley, the focus of its inquiry was on academic achievement. IDEA required the schoolto provide services to allow the child the requisite basic floor of opportunity. It did notrequire the school to make special accommodations at a parents request (no matter howwell intentioned), particularly where the request was unrelated to helping the childachieve academic potential. In addition, the court observed that none of its sister circuitsthat had addressed the issue had recognized a right to a neighborhood school assignmentunder IDEA. However, the school district has also presented sufficient evidence that theplacement advocated for by the parents is completely inappropriate and provides noeducational benefit to the student. The parents argue that the student will suffer a loss ofself esteem and will lose the opportunity for interaction with her typical peers at ConantHigh School. Beth B. precludes placing a child in a program that does not confereducational benefit even if the proposed less restrictive placement meets the socializationneeds of the student. Beth B. at 1026. The parents claim that the student is entitled to a free appropriate public educationin the least restrictive environment citing Oberti v. Bd. of Educ. of Borough ofClementon School District, 995 F.2d 1204 (3rd Cir.1993) and Section 1412(a)(5) ofIDEA with its clear preference for "mainstreaming". The reliance on Oberti is misplacedin light of Beth B. where the court asked two competing questions: (1) can the studentreceive a satisfactory education in a regular education classroom and (2) is the studentmainstreamed to the maximum extent possible. The court concluded that the primaryobligation of the school district is to provide an educational benefit to the student. Inshort, if a placement fails to provide educational benefit, the statutory presumption infavor of mainstreaming has been overcome. In the instant case, the evidence leads to theinescapable conclusion that continued placement at Conant High School wasunsatisfactory. In Beth B. the court observed that it was really presented with a choice betweentwo forms of special education. The court observed that the student sat in a regularclassroom effectively segregated from the other children. Her cognitive limitations didnot allow her to participate in the regular instruction. The student received a parellelcurriculum. She had no meaningful interaction with her non-disabled peers duringacademic classes. The court concluded that the student was not being mainstreamed butwas receiving special education within a regular education classroom. In the instant case, this student spends very little time in her academic classrooms.She spends the majority of her time in her workroom, isolated with her teacher andteacher assistant, because of her disruptive vocalizations and self-injurious behaviors.Similar to Beth B., this student is engaged in the "illusion" of mainstreaming. The
    • student is patently unable to remain in the regular education classroom. A district neednot, indeed may not, place a child in a program that does not confer educational benefitsimply because it is less restrictive. Beth B. at 1026 The federal court decision in Beth B. was appealed to the 7th Circuit. In itsdecision, the court held that a school district must provide children with a free appropriatepublic education ("FAPE"), together, to the maximum extent appropriate, withnondisabled children ("LRE"). The first requirement is absolute and focuses on theschool districts proposed placement; the second is relative and concentrates on otherplacement options. The LRE requirement shows Congress strong preference in favor ofmainstreaming but does not require, or even suggest, doing so when the regular classroomsetting provides an unsatisfactory education. Where the proposed IEP passes musterunder the Rowley standard, the FAPE mandate has been satisfied. Beth B. v. Van Clay,282 F.3d 493 (7th Cir.2002) The core dispute in this case involves whether the school districts decision toplace the student in a self-contained multiple needs classroom violates the LRErequirement of IDEA. Under IDEA, the district must mainstream the student byproviding her with an education with her nondisabled peers to the greatest extentappropriate. The Supreme Court has stated that "the Acts use of the word "appropriate"thus seems to reflect Congress recognition that some settings simply are not suitableenvironments for the participation of some handicapped children. Rowley at 197. Itshould be clear from the evidence that the students continued placement at Conant HighSchool is completely inappropriate in light of the students behaviors and will not providethe student with a satisfactory education. The student spent little or no time in her regulareducation classes, received little academic instruction, and was not able to socialize withthe other students because she was not in the classroom long enough. Every factormentioned by the 7th Circuit in Beth B. strongly favors a finding for the district.Furthermore, the students random aggressive and self-injurious actions were not at issuein Beth B. As counsel for the school district correctly points out in his brief: this casecan be summarized in three words: "Beth B. plus behavior". DECISION IN IS HEREBY ORDERED that on or before fifteen (15) days of date of thisdecision, the school district shall implement the placement contained within theNovember 5, 2003 Individual Education Plan by placing this child in a highly structured,self-contained setting that could develop and operate an intensive behavior interventionfor aggressive and self-injurious behavior while also addressig fundamental skills such asbasic compliance training. The self-contained program must have a very strongbehavioral training capability. A placement similar to the multiple needs classroomsoperated at NDSEC at Lake Park High School would be preferable. Within thatplacement, the staff shall re-assess the students IEP, conduct a functional assessment ofthe students current behavior and develop an appropriate behavior intervention plan.Once the behavior intervention plan has been developed and has been operational for an
    • appropriate period of time, the school district shall proceed with an assessment of thestudents abilities so that appropriate educational programming can commence. The school district shall submit proof of compliance with this order to the IllinoisState Board of Education, Program Compliance Division, 100 North First Street,Springfield, Illinois 62777 within thirty (30) days of the date of this order. RIGHT TO REQUEST CLARIFICATION Either party may request clarification of this decision by submitting a writtenrequest for such clarification to the undersigned hearing officer within five (5) days ofreceipt of this decision. The request for clarification shall specify the portions of thedecision for which clarification is sought and a copy of the request shall be mailed to theparty and to the Illinois State Board of Education, Program Compliance Division, 100North First Street, Springfield, Illinois 62777. The right to request such a clarificationdoes not permit a party to request reconsideration of the decision itself and thehearing officer is not authorized to entertain a request for reconsideration. RIGHT TO FILE A CIVIL ACTION This decision shall be binding upon the parties unless a civil action iscommenced. Any party to this hearing aggrieved by this decision has the right tocommence a civil action with respect to the issues presented in the hearing. Pursuant toILCS 5/14-8.01(i), that civil action shall be brought in any court of competent jurisdictionwithin 120 days after a copy of this decision was mailed to a party. ISSUED this 24th day of August, 2004. _____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer
    • CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Decision and Order wasplaced in the U.S. Mail at Flossmoor, Illinois, via certified mail return receipt requested,postage prepaid and directed to: Mr. Matthew D. Cohen Attorney at Law 225 West Washington Street #2300 Chicago, IL 60606 Mr. Brooke R. Whitted Whitted & Cleary Attorneys at Law 3000 Dundee Road #303 Northbrook, IL 60062 Dr. Elizabeth Brooks Due Process Coordinator Illinois State Board of Education 100 North First Street Springfield, IL 62777-0001on August 24, 2004. ____________________________________CAROLYN ANN SMARONAttorney at Law635 Argyle AvenueFlossmoor, Illinois 60422708 798 0966 (facsimile 708 798 3430) ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARING
    • L. R. ) ) Student ) ) Case No. 3002vs. ) )TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District )CAROLYN ANN SMARON, Hearing Officer CLARIFICATION OF DECISION Counsel for the parents has requested clarification of the Decision and Order. 1. Counsel cites the following statement which appeared on page 45 of theDecision and Order: It would appear that the parents are focused on the August, 2003 IEP meetings in their contention that the school district failed to formulate and implement a cohesive, effective behavior intervention plan (BIP), failed to address all of the students needs, failed to provide the student with a transition or extended school year (ESY) services, and failed to provide her with appropriate related service. However, the IEP which was implemented in Spring 2003 was the IEP developed in August 2002 as amended by the provisions of the Settlement Agreement in November, 2002.Counsel for the parents inquires if the above statement implies that implementation of theAugust 2002 IEP was barred by the Settlement Agreement. Counsel for the parentinquires if the above statement implies that the Settlement Agreement prospectivelysupercedes IDEA or the obligation to provide FAPE. CLARIFICATION: The Decision and Order speak for themselves in the finding thatthe students behavior in the placement at Conant High School actively interfered with allattempts to provide educational benefit to the student and that nothing of any educationalbenefit occurred at Conant High School in Spring, 2003 and Fall, 2003. Within theNovember, 2002 Settlement Agreement the parties themselves agreed to disagree: theschool district remained convinced that the students injurious behavior needed to bereduced incrementally in a self-contained program and the parents remained convinced thatthe school district had failed to adequately respond to the students behavior duringher freshman year. The parties assembled a panel of experts and the school districthired Jean Mansfield Link. The result: no educational benefit. Counsel for the parentsmisses the point: it was not the implementation but the placement.
    • 2. Counsel cites the following statement (bold words) which appeared onpage 46 of the Decision and Order: Although there has been no issue raised as to the IEP which was in place during the students freshman year, behavioral data suggested that the student spent more than 50% of her day within the work room -with her behavior vacillating between cooperative and compliant to agitated and noncompliant. During the second semester of her freshman year, the student was absent a total of sixteen days, due to family vacations, illness, out-of-school suspensions, and the testing at the University of Chicago. The students last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the students behavior and the creation of a behavior intervention plan, the students behavior clearly interfered with the ability of the school district to provide an education to the student. It is clear that the situation was not working!Counsel for the parents inquires as to the basis for incorporating "alleged" events fromprior to the Settlement Agreement in the Order.CLARIFICATION: The Decision and Order speak for themselves in the finding thatthe events set forth above were contained within the Individual Education Plan developedin August 2002 and provided a context for the actions of the parties subsequent thereto.The events themselves happened - the absences, the nasal fractures, the creation of a"workroom", etc. The parties disagree as to the import of those events. 3. Counsel for the parents requests clarification of the conclusion that theparents had a meaningful opportunity to participate in the November 5, 2003 IEP meetingin light of the testimony indicating that Dr. Malito and Dr. Gates had already made theplacement decision prior to the IEP meeting.CLARIFICATION: No clarification is permitted as counsel is asking the hearingofficer to reconsider a clear finding that the evidence was overwhelming that the parentswere maximally involved in the IEP process, its implementation and modifications. 4. Counsel for the parents requests clarification of the Order directing theschool district to place the student in a classroom similar to Lake Park High School inlight of testimony that Lake Park High School is full and and then questions what theschool district will do if there are "...no other appropriate and geographically accessibleprograms offered by the District". Counsel for the school district joins in the request forclarification requesting a separate Order that the parents sign Exchange/Release ofConfidential School Records and Release of Mental Health Information in the formsubmitted to counsel for the parents on August 26, 2004. AMENDED DECISION AND ORDER
    • IN IS HEREBY ORDERED that on or before fifteen (15) days of date of thisdecision, the school district shall implement the placement contained within theNovember 5, 2003 Individual Education Plan by placing this child in a highly structured,self-contained setting that could develop and operate an intensive behavior interventionfor aggressive and self-injurious behavior while also addressing fundamental skills suchas basic compliance training. The self-contained program must have a very strongbehavioral training capability. A placement similar to the multiple needs classroomsoperated at NDSEC at Lake Park High School would be preferable. Within thatplacement, the staff shall re-assess the students IEP, conduct a functional assessment ofthe students current behavior and develop an appropriate behavior intervention plan.Once the behavior intervention plan has been developed and has been operational for anappropriate period of time, the school district shall proceed with an assessment of thestudents abilities so that appropriate educational programming can commence. Theparents are ordered to execute any and all Exchange/Release of Confidential SchoolRecords and Release of Mental Health Information forms to allow release ofinformation to proposed placements within ten (10) days of date of this Order andin general, cooperate in the placement process. The school district shall submit proof of compliance with this Clarification ofDecision and Amended Decision and Order to the Illinois State Board of Education,Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 withinthirty (30) days of the date of this order. RIGHT TO FILE A CIVIL ACTION This decision and clarification shall be binding upon the parties unless a civilaction is commenced. Any party to this hearing aggrieved by this decision has the rightto commence a civil action with respect to the issues presented in the hearing. Pursuantto ILCS 5/14-8.01 (i), that civil action shall be brought in any court of competentjurisdiction within 120 days after a copy of this decision was mailed to a party. ISSUED this 29th day of August, 2004. ____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer
    • CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Clarification of Decision andOrder was placed in the U.S. Mail at Flossmoor, Illinois, via certified mail return receiptrequested, postage prepaid and directed to: Mr. Matthew D. Cohen Attorney at Law 225 West Washington Street #2300 Chicago, IL 60606 Mr. Brooke R. Whitted Whitted & Cleary Attorneys at Law 3000 Dundee Road #303 Northbrook, IL 60062 Dr. Elizabeth Brooks Due Process Coordinator Illinois State Board of Education 100 North First Street Springfield, IL 62777-0001on August 30, 2004.CAROLYN ANN SMARONAttorney at Law635 Argyle AvenueFlossmoor, Illinois 60422
    • ILLINOIS STATE BOARD OF EDUCATION IMPARTIAL DUE PROCESS HEARINGL. R. ) ) Student ) ) Case No. 3002vs. ) )TOWNSHIP HIGH SCHOOL DISTRICT 211 ) ) Local School District )CAROLYN ANN SMARON, Hearing Officer CLARIFICATION OF DECISION Counsel for the parents has requested clarification of the Decision and Order. 1. Counsel cites the following statement which appeared on page 45 of theDecision and Order: It would appear that the parents are focused on the August, 2003 IEP meetings in their contention that the school district failed to formulate and implement a cohesive, effective behavior intervention plan (BIP), failed to address all of the students needs, failed to provide the student with a transition or extended school year (ESY) services, and failed to provide her with appropriate related service. However, the IEP which was implemented in Spring 2003 was the IEP developed in August 2002 as amended by the provisions of the Settlement Agreement in November, 2002.Counsel for the parents inquires if the above statement implies that implementation of theAugust 2002 IEP was barred by the Settlement Agreement. Counsel for the parentinquires if the above statement implies that the Settlement Agreement prospectivelysupercedes IDEA or the obligation to provide FAPE. CLARIFICATION: The Decision and Order speak for themselves in the finding thatthe students behavior in the placement at Conant High School actively interfered with allattempts to provide educational benefit to the student and that nothing of any educationalbenefit occurred at Conant High School in Spring, 2003 and Fall, 2003. Within theNovember, 2002 Settlement Agreement the parties themselves agreed to disagree: theschool district remained convinced that the students injurious behavior needed to bereduced incrementally in a self-contained program and the parents remained convinced thatthe school district had failed to adequately respond to the students behavior duringher freshman year. The parties assembled a panel of experts and the school district
    • hired Jean Mansfield Link. The result: no educational benefit. Counsel for the parentsmisses the point: it was not the implementation but the placement. 2. Counsel cites the following statement (bold words) which appeared onpage 46 of the Decision and Order: Although there has been no issue raised as to the IEP which was in place during the students freshman year, behavioral data suggested that the student spent more than 50% of her day within the work room -with her behavior vacillating between cooperative and compliant to agitated and noncompliant. During the second semester of her freshman year, the student was absent a total of sixteen days, due to family vacations, illness, out-of-school suspensions, and the testing at the University of Chicago. The students last day of school was May 21, 2002 after two staff members sustained nasal fractures. Despite the creation of a "work room", a functional assessment of the students behavior and the creation of a behavior intervention plan, the students behavior clearly interfered with the ability of the school district to provide an education to the student. It is clear that the situation was not working!Counsel for the parents inquires as to the basis for incorporating "alleged" events fromprior to the Settlement Agreement in the Order.CLARIFICATION: The Decision and Order speak for themselves in the finding thatthe events set forth above were contained within the Individual Education Plan developedin August 2002 and provided a context for the actions of the parties subsequent thereto.The events themselves happened - the absences, the nasal fractures, the creation of a"workroom", etc. The parties disagree as to the import of those events. 3. Counsel for the parents requests clarification of the conclusion that theparents had a meaningful opportunity to participate in the November 5, 2003 IEP meetingin light of the testimony indicating that Dr. Malito and Dr. Gates had already made theplacement decision prior to the IEP meeting.CLARIFICATION: No clarification is permitted as counsel is asking the hearingofficer to reconsider a clear finding that the evidence was overwhelming that the parentswere maximally involved in the IEP process, its implementation and modifications. 4. Counsel for the parents requests clarification of the Order directing theschool district to place the student in a classroom similar to Lake Park High School inlight of testimony that Lake Park High School is full and and then questions what theschool district will do if there are "...no other appropriate and geographically accessibleprograms offered by the District". Counsel for the school district joins in the request forclarification requesting a separate Order that the parents sign Exchange/Release ofConfidential School Records and Release of Mental Health Information in the formsubmitted to counsel for the parents on August 26, 2004.
    • AMENDED DECISION AND ORDER IN IS HEREBY ORDERED that on or before fifteen (15) days of date of thisdecision, the school district shall implement the placement contained within theNovember 5, 2003 Individual Education Plan by placing this child in a highly structured,self-contained setting that could develop and operate an intensive behavior interventionfor aggressive and self-injurious behavior while also addressing fundamental skills suchas basic compliance training. The self-contained program must have a very strongbehavioral training capability. A placement similar to the multiple needs classroomsoperated at NDSEC at Lake Park High School would be preferable. Within thatplacement, the staff shall re-assess the students IEP, conduct a functional assessment ofthe students current behavior and develop an appropriate behavior intervention plan.Once the behavior intervention plan has been developed and has been operational for anappropriate period of time, the school district shall proceed with an assessment of thestudents abilities so that appropriate educational programming can commence. Theparents are ordered to execute any and all Exchange/Release of Confidential SchoolRecords and Release of Mental Health Information forms to allow release ofinformation to proposed placements within ten (10) days of date of this Order andin general, cooperate in the placement process. The school district shall submit proof of compliance with this Clarification ofDecision and Amended Decision and Order to the Illinois State Board of Education,Program Compliance Division, 100 North First Street, Springfield, Illinois 62777 withinthirty (30) days of the date of this order. RIGHT TO FILE A CIVIL ACTION This decision and clarification shall be binding upon the parties unless a civilaction is commenced. Any party to this hearing aggrieved by this decision has the rightto commence a civil action with respect to the issues presented in the hearing. Pursuantto ILCS 5/14-8.01 (i), that civil action shall be brought in any court of competentjurisdiction within 120 days after a copy of this decision was mailed to a party. ISSUED this 29th day of August, 2004. ____________________________________ CAROLYN ANN SMARON Due Process Hearing Officer
    • CERTIFICATE AND AFFIDAVIT OF DELIVERY BY MAIL The undersigned hereby certifies that a copy of this Clarification of Decision andOrder was placed in the U.S. Mail at Flossmoor, Illinois, via certified mail return receiptrequested, postage prepaid and directed to: Mr. Matthew D. Cohen Attorney at Law 225 West Washington Street #2300 Chicago, IL 60606 Mr. Brooke R. Whitted Whitted & Cleary Attorneys at Law 3000 Dundee Road #303 Northbrook, IL 60062 Dr. Elizabeth Brooks Due Process Coordinator Illinois State Board of Education 100 North First Street Springfield, IL 62777-0001on August 30, 2004.CAROLYN ANN SMARONAttorney at Law635 Argyle AvenueFlossmoor, Illinois 60422708 798 0966 (facsimile 708 798 3430) 67