This case arises from a request by XXXX and XXXX XXXX ("Parents"),1 on behalf of their daughter XXXX XXXX ("Student") for a hearing to review the placement of the child at Marc Nachman, Administrative Law Judge ("ALJ") conducted a hearing on July 2, 2002 at the offices of the Montgomery County Public Schools (“MCPS”), 850 Hungerford Drive, Rockville, Maryland . Zvi Greisman, Esq., represented the MCPS. The Parents represented themselves2 with the assistance of their son, XXXX XXXX. 3 The hearing was held pursuant to 1 The Request for hearing was signed by the student’s father only, however the student’s mother was also involved in pursuing this appeal. Therefore, both parents will be considered the proper parties in this case. 2 One and one half hours after the start of the hearing, the Parents requested a continuation to obtain an attorney. The MCPS attorney objected to this request; one MCPS witness had already testified, and two other MCPS witnesses were present and ready to testify. The Student had been in special education for most of her academic the following laws: Individuals With Disabilities Education Act ("IDEA") Reauthorization, Disabilities Education Act Amendments of 1997, 20 U.S.C.A. § 1415 (2000); 34 C.F.R. § 300.507 (2001); Md. Code Ann., Educ. § 8-413 (Supp. 2001); Maryland State Department of Education Guidelines for Maryland Special Education Mediation/Due Process Hearings. Procedure in this case is governed by the contested case provisions of the Administrative Procedure Act, and the Rules of Procedure of the Office of Administrative Hearings. Md. Code Ann., State Gov't §§ 10-201 through 10-226 (1999 & Supp. 2001); Code of Maryland The issue on appeal is whether the Individual Education Program (“IEP”) prepared for the Child by the MCPS, and/or the placement proposed for the Child in SCHOOL 1, afforded the Child an opportunity for a Free and Appropriate Public Education (“FAPE”) for the 2002-2003 school year4 in the least restrictive environment consistent with her educational needs. SUMMARY OF THE EVIDENCE
No exhibits were offered or admitted into evidence on behalf of the Parents. The following exhibits were admitted into evidence on behalf of the MCPS: MCPS Ex. 1 - IEP for School Year 2002-2003 dated April 8, 2002 (14 pages) career, so the Parents were familiar with the need for and possibility of having an attorney. Also, the hearing had been scheduled approximately a month before. On the record, the ALJ denied the continuance, stating these reasons on the record. 3 Although their son was not an attorney nor a party to the case, the Parents requested that their son participate in this case due to language concerns. The attorney for the MCPS did not object to the Parent’s request, which was granted for the purposes of this hearing. 4 An IEP is a “blueprint” for assisting a student with special education needs. Its development requires evaluation of the disabled student’s present level of performance and his unique needs for special education and any related services. The IEP is to be reviewed not less than annually by school officials and the student’s parents or guardians and revised as needed. 20 U.S.C.A. § 1414(d). MCPS Ex. 2 – Letter from MCPS to the Parents dated April 3, 2002 (1 page) MCPS Ex. 3 – XXXX Center, Inc., Summary Review for Student (2 pages) MCPS Ex. 4 - Secondary Teacher Referral/Reports (5 pages) MCPS Ex. 5 and 6 – Not submitted into evidence5 MCPS Ex. 7 – School Psychologist’s Confidential Status report dated June 20, MCPS Ex. 8 – Not submitted into evidence MCPS Ex. 9 - IEP for School Year 2000-2001 dated March 30, 2001 (14 pages) MCPS Ex. 10 – Not submitted into evidence MCPS Ex. 11 - XXXX Center, Inc., Diagnosis dated March 20, 2001 (2 pages) MCPS Ex. 12 – Confidential Report of School Psychologist (11 pages) MCPS Ex. 13 – Educational Assessment Report dated February 28, 2001 (5 The Parents and their son XXXX XXXX presented testimony on behalf of the Parents. The following witnesses presented testimony on behalf of the MCPS: • XXXX XXXX, School Counselor at SCHOOL 1, who testified as an expert in • XXXX XXXX, LCSW-C, Clinical Therapist at XXXX Center, Inc. who testified as an expert in Therapeutic Services and Social Work 5 MCPS pre -marked its exhibits, but did not offer all of those marked exhibits into evidence. • XXXX XXXX, M.A., C.A.S., School Psychologist II, who testified as an expert in FINDINGS OF FACT
Based upon the evidence presented, I find the following facts by a preponderance of the The Student is a X year old female (d.o.b. XXXX/XX) currently being educated in the Montgomery County Public School system. The Student has been in some The Student presently lives with her parents. The Student was formerly a student in the special education program operated by MCPS within SCHOOL 2, a general education school. She experienced peer- The Student suffers from severe emotional disabilities. The Student is suspicious of and mistrusts other students, exhibiting borderline paranoia symptoms. The Student consistently avoids contact with other students, believing that the other students are negatively talking about her. She reacts by withdrawing herself or striking out against other students at random for no apparent, observable reason. The student has academic capabilities that are not fully achieved due to her emotional disabilities. Her disability prevents the Student from being available In 1999, an IEP was convened and because of her emotional disabilities the Student was enrolled in SCHOOL 1, a self-contained special education facility SCHOOL 1 has a student population of approximately 120 students, with a teacher to student ratio of approximately four or five students to one educator. This ratio is maintained by having class sizes of between 8 and 10 students taught by one special education teacher and one special education teacher’s assistant. SCHOOL 1 has a full time school psychologist and is also staffed by therapists from The XXXX Center, Inc., an outside mental health agency that is present on the school premises to provide mental health support services to the students. The present IEP calls for the Student to have 30 hours of special education per week, which is the maximum amount of special education possible on a weekly basis. A large component of this assistance comes from the XXXX Center staff. The Student’s home school is SCHOOL 3. If she were not enrolled at SCHOOL 1, she would be enrolled in a special educatio n program at SCHOOL 3. SCHOOL 3 has a general student population of approximately 2,000 students. The student to teacher ration is significantly higher than that at SCHOOL 1. When the Student experiences emotional outbreaks or withdrawals at SCHOOL 1, MCPS or XXXX Center staff members serve as a crisis intervention team, assisting the student to work through her crisis and return to class. A general education school, such as SCHOOL 3, does not have similar support services on its premises; there is no crisis intervention team present on their Even if the Student were segregated in a special education program within a general education school, that environment would not be supportive enough to the Student due to her emotional disabilities and the resulting need for continuing and Due to the Student’s emotional disabilities, SCHOOL 1 is the least restrictive DISCUSSION
The Individuals with Disabilities Education Act (“IDEA”), requires, “that all children with disabilities have available to them.a free appropriate education that emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C.A. § 1400(d) (2000). The Act provides federal money to the states to educate disabled children on condition that states comply with the extensive goals and procedures of the Act. 20 U.S.C.A. §§ 1412- 1414, 34 C.F.R. § 300.2, Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). Maryland’s special education law is found at Md. Code Ann., Educ. § 8-101 et. sec. and the regulations governing the provision of special education to children with disabilities are found at COMAR 13A.05.01. A free appropriate education (“FAPE”) is defined in COMAR 13A.05.01.03 as follows: “Free, appropriate public education” means special education and related services which: Are provided at public expense, under public supervision and direction; Meet the standards of the Department, including the requirements of 34 CFR §§300.7, 300.121, and 300.122, and this chapter; Include preschool, elementary school, or secondary education; and Are provided in conformity with an IEP that meets the requirements of 20 U.S.C. § 1414, and this chapter. FAPE is, in part, furnished through the development and implementation of an IEP, for each disabled child. Rowley at 181-2. COMAR 13A.05.01.09 defines an IEP and outlines the required content of an IEP as a written description of the special education needs of the Student and the special education and related services to be provided to meet those needs. The goals, objectives, activities, and materials shall be adapted to the needs, interests, and abilities of each student. 20 U.S.C.A. § 1414(d). It must be reasonably calculated to enable the child to receive educational benefits. Rowley, at 182. While FAPE does not require “the best possible education that a school system could provide if given access to unlimited funds,” Barnett v. Fairfax Co. School Bd., 927 F.2d 146 (4th Cir. 1991), it does require the State to provide personalized instruction with sufficient support services to permit the handicapped child to benefit educationally. In turn, “educational benefit” has been construed to mean more than trivial or de minimis educational progress. In Re Conklin, 946 F.2d 306 (4th Cir. 1991). See also, Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988). The IDEA requires an IEP to provide a “basic floor of opportunity that access to special education and related services provides.” Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990). Nor is there a “requirement to guarantee any particular outcome for the child.” King v. Bd. of Ed. of Allegany County, 999 F. Supp. 750, 767 (4th Cir. In Rowley, supra, the Court set forth a two-part analysis to determine whether a child is being accorded a free appropriate public education under the IDEA. First, a determination must be made whether there has been compliance with the procedures set forth in the IDEA and second, whether the IEP as developed through the required procedures is reasonably calculated to enable the child to receive educational benefits. Once an IEP is shown to be procedurally proper, the judgment of education professionals regarding the child’s placement should be questioned only with great reluctance by the reviewing authority. Tice, supra. Courts have held that “[l]ocal educators deserve latitude in determining the individualized education program most appropriate for a disabled child. The IDEA does not deprive these educators of the right to apply their professional judgment.” Hartman v. Loudoun County Bd. of Educ., 118 F.3rd 996, 1001 (4th To the maximum extent possible, the IDEA seeks to mainstream the child into regular public schools, but in any case, to place the child in the “least restrictive environment” consistent with his or her educational needs. 20 U.S.C.A. § 1412(5). What constitutes the least restrictive environment differs for each child, but could range from a regular public school to a residential school where 24-hour supervision is provided. COMAR 13A.05.01.10A. The Child’s Parents do not argue that the MCPS committed procedural errors, and therefore, the question presented for me is whether the IEP is reasonably calculated to enable the Child to receive educational benefits in the least restrictive environment. The IEP team recommended that the Student attend SCHOOL 1 for the 2002-2003 school year, although the Student and her Parents want the Student to attend SCHOOL 3, her home school. Burden of Proof
The initial question presented in this case was which party, the Parents or MCPS, has the Unfortunately, there is no clear statutory authority for assigning the burden to one party or another, and the courts are split. For example, "In administrative and judicial proceedings, the school district bears the burden of proving the appropriateness of the IEP it has proposed." Carlisle Area School v. Scott P. 62 F.3d 520, 533 (3rd Cir. 1995) (quoting Oberti v. Board of Education, 995 F.2d 1204, 1219 (3rd Cir. 1993). "The School District had the burden of proving compliance with the IDEA at the administrative hearing, including the appropriateness of its evaluation." Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir. 1996). But see: Johnson v. Independent School District No. 4, 921 F.2d 1022, 1026 (10th Cir. 1990) (The burden of proof rests with the party attacking the student's IEP); and Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1158 (5th Cir. 1986) (The party attacking an IEP bears the burden of showing why the educational setting and IEP are not appropriate.) In Alamo Heights, the U. S. Court of Appeals for the Fifth Circuit explained the rationale for its view on the assignment of the burden of proof: [The IDEA] "place[s] primary responsibility for formulating handicapped children’s education in the hands of state and local school agencies in cooperation with each Student's parent." In deference to this statutory scheme and the reliance it places on the expertise of local education authorities . . . [The IDEA] creates a "presumption in favor of the educational placement established by a [student's IEP]," and "the party attacking its terms should bear the burden of showing why the educational setting established by the [IEP] is not appropriate." 790 F.2d at 1158 (quoting Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983)). The Court of Appeals for the Fourth Circuit addressed the question of which party bears the burden of proof in Stemple v. Board of Educ. of Prince George’s County, 623 F.2d 893, 896 (4th Cir. 1980), but declined to decide the issue. The Fourth Circuit has stated that, “a reviewing [authority] should be reluctant indeed to second-guess the judgement of education professionals.” Rowley at 207-208; Tice, 908 F.2d at 1207. Also, three recent decisions from the U.S. District Court for the District of Maryland have touched on the issue of burden of proof. In Fritschle v. Andes, 45 F. Supp. 2d 500, 508 footnote 21 (D. Md. 1999), Judge Davis notes the split in authorities on the issue and comments, without taking a position, that: “a determination of who bears the burden of proof at the administrative hearing has significant ramifications, as the losing party will then bear the burden [on appeal].” In Schmerling v. Anne Arundel County Board of Educ., Civil Action No. WMN-98-2283, slip op. at 5 (D. Md. May 18, 1999), Judge Nickerson addressed the issue, but declined to issue a “hard-and- fast rule for all IDEA cases.” On the facts of the case before him, Judge Nickerson affirmed the decision of the Administrative Law Judge who had placed the burden of proof on the parents to establish that an Most recently, in Brian S. v. Vance, 86 F. Supp.2d 538 (D. Md. 2000), vacated and remanded sub nom Schaffer v. Vance, 2001 U.S. App. LEXIS 363, 2 Fed. Appx. 232 (2001)6, Judge Messitte disagreed with Judge Nickerson as to who has the burden of proof in the instance of a challenge to an initial IEP. In a well reasoned decision, Judge Messitte discussed and decided the issue of which party should have the burden of proof under three scenarios: There is the initial IEP, proposed by the school authorities the first time it is sought for a child, with which the parents do not agree and as to which they seek an administrative due process hearing; There is the existing IEP, at one time agreed to by everyone, which either the parents or the school district seek to change against the wishes of the other, whereupon the matter goes to an administrative due process hearing; and 3) There is the IEP that has been passed upon by an independent ALJ, which a party seeks to challenge in a court proceeding. 6 Although this case was vacated on appeal, the court declined to discuss the burden of proof issue, stating, “If this court is to address the issue of who has the burden of proof in challengin g an initial IEP, it should be in the context of a matured case or controversy rather than in the piecemeal fashion in which this case now appears before us.” 2 Fed. Appx. at 234. Accordingly, given the lack of decisive authority on the issue of burden o f proof, and given the thoroughness of Judge Messitte’s opinion, his analysis has been relied upon in this decision. After a thorough discussion of the congressional intent behind the IDEA, case law, journal articles and evidentiary treatises, Judge Messitte placed the burden in the first scenario on the school district, in the second scenario on the party seeking the change and in the third scenario on the party challenging the administrative decision. Given the lack of definitive authority in this Circuit, the support in other Circuits for placing the burden of persuasion on the Parents, and in view of the reluctance expressed by the U. S. Court of Appeals for the Fourth Circuit in Tice, "to second-guess the judgement of education professionals," I conclude that the rationales expressed by the Court of Appeals for the Fifth Circuit in Alamo Heights, and the U.S. District Court for the District of Maryland in Brian S. are most persuasive. Using the analyses in those cases, I placed the burden of proof on the Parents in this case who seek a change in the IEP. To meet its burden, the Parents must demonstrate that the 2002-2003 IEP and the Student’s proposed placement at SCHOOL 1 are not reasonably calculated to enable the Student to receive FAPE in the least restrictive environment. The Student’s Disability.
There is little question that the Student is in need of special education services. Her Woodcock-Johnson7 scores place her in the 8th percentile in broad reading and the 4th percentile in broad writing, with a lower score in broad math (.1 percentile) (MCPS Ex. # 9, page 1). When tested on the WISC-III8 scale in July 1999, her Verbal IQ was found to be 75 and her performance IQ was 46 (MCPS Ex. #12). Other testing indicated that she functioned in a lower 7 This is a test to determine how well students do in academic subjects by testing achievement rather than cognitive abilities (T. 24). range than expected for her age due to both external and internal distractions, and her emotional problems have affected her availability for education with increasing intensity. 9 She has such a significant presence of anxiety, depression, low self-esteem, thought disorder, non-compliance and distractibility (T.103), that Mr. XXXX, the school psychologist, places her in a high at-risk range (MCPS Ex. # 12). Although MCPS does not believe that the Student has a learning disability, she does have an educational disability (T. 49) and is in need of special education services, as she cannot access the MCPS’s general curriculum. The Student has been assessed as Emotionally Disabled (“ED”), coding her disability as “06” (T.31-2, 111). The witnesses who presented evidence for MCPS unanimously confirmed this assessment. There is little question that the student needs special education services. The question becomes what is the least restrictive environment for this student consistent with her SCHOOL 1.
SCHOOL 1 has approximately 120 students (T.51) distributed in middle and high school grades, grouped according to skill levels rather than academic grades (T.17). All of the students at SCHOOL 1 have disabilities that entitle them to receive special education and related services under the IDEA (T.7-18). The SCHOOL 1 program is designed for students who are not expected to meet the academic criteria for a high school diploma. The school teaches a fundamental life skills program rather than the general curriculum high school program leading to the awarding of a diploma. The fundamental life skills program of studies is designed to focus on learning functional life skills, such as travel training and vocational education, along with 8 Wechsler Intelligence Scale for Children. 9 One of the teachers noted in the IEP that “Anxiety, socialization and fears impact her consistent performance in the classroom,” a sentiment echoed by Ms. XXXX (T. 43). academics integrated in a functional way so that the Child can learn to become as independent as possible (T. 25). At SCHOOL 1, students are taught in classes of eight to ten students with one special education teacher and a special education teacher’s aide, resulting in a teacher-to-student ratio of between four and five to one (T. 22). SCHOOL 3, the Student’s home high school, has a population of approximately 2,000 students with a special education program contained within that school (T.51). SCHOOL 1 is a self-contained school, containing only special education students (T.18). This placement is designed to meet a student’s need to be in a small class with a low teacher-to-student ratio rather than in a general education school such as SCHOOL 3. One of the other main components at SCHOOL 1 is the presence of mental health specialists from The XXXX Center, Inc., an outside mental health agency that is present at the school to provide mental health support services to the students (T.18). These services include individual counseling, group counseling and crisis management (T. 64). Counseling support of this magnitude is not available in other general curriculum schools such as SCHOOL 3 (T.51-2). Placement at SCHOOL 1.
The document that is the basis of the student’s placement is the IEP (MCPS Ex. # 1) which resulted from the annual review occurring on February 8, 2002. That plan, dated April 13, 2002, placed the student in the MCPS Fundamental Life Skills Program of Studies, as opposed to General Education Program of Studies. The IEP recognized the student’s strengths as well as areas of need. However, her anxiety, difficulties socializing and her fears adversely impacted her consistent performance in the classroom, and special education needs were identified recognizing her emotional disability. In fact, 30 hours of crisis management services were recommended. This is the maximum amount of time that services can be provided in a school The Parents seek to have the Student educated at her home school in a special education program located within that facility. The prospect of the student’s participation with non- disabled peers was discussed on page 8 of her IEP. Given the recommended supplementary aids and services on pages 6 and 7 of the IEP (which inc lude providing consultation for psychologists, counselors, and mental health professionals), the student could not participate with non-disabled students in the general education environment because “anxiety and emotional interference require a comprehensive special education approach”10 as well as her need for supervision in general school or extra-curricular activities. Primary special education services were required 29 hours per week11 for all activities, due to the need for counseling, consultation and crisis management. Given the student’s IEP goals and objectives, as well as the recommended supplementary aids and services, the student could not be educated in a general education classroom or a resource/classroom combination of special classroom within a general education facility. What the student required was a separate special education day school, which in this instance, was determined to be SCHOOL 1.12 The Student’s Family’s opposition to placement at SCHOOL 1.
The Parents, her brother and the Student testified. At the IEP team meeting as well as at the hearing in this matter, the Parents expressed concern that the Student was placed in a segregated special education school. They believe that, although there was some comfort to being at SCHOOL 1 (Brother, T. 135), the Student should be in a general education environment 10 The prior year’s IEP stated that, “[d]ue to significant socio emotional interference, [the student] requires a full day special education program]” without participation with nondisabled peers because she “needs one on one supervision” to monitor her behavior (MCPS #9, page 8). Even though posit ive steps have been noted, the student’s condition had deteriorated and her anxiety about her peers continues. MCPS Ex. #11. 11 One week is 30 hours total. and not among only disabled students. Her brother believed that she needed to be in a more general group, which would motivate her and encourage her, increasing her morale at home and in school (Brother, T. 135). Her mother testified that she did not need to be at SCHOOL 1 (T. 35). This sentiment was echoed by her father, who testified that his agreement to place the Student at SCHOOL 1 caused friction in the family because the Student blames her parents for making her attend SCHOOL 1 (T. 138-9). The Student expressly states that she does not want to be among disabled students (T.137) and has caused problems at home because of this placement The Student testified that she did not like being at SCHOOL 1 and did not feel that she belonged there. The Student expressed the desire to attend SCHOOL 3, her home school, for “lots of reasons” (T.143) which remain unspecified but which seem to center on her perception that she did not want to be educated or socialize with disabled students, as she did not see herself At last year’s IEP meeting, the Parents acknowledge that the Student has social phobias, but also that she feels that she does not belong at SCHOOL 1 because “she doesn’t have the same problems as the students in her school. This makes her feel really out of place” (MCPS Ex. Yet the student has not fully thought about the size of the school to which she aspires. Like at SCHOOL 2, at SCHOOL 3 there are students who might be rude or mean to her and tease her. When the student was specifically asked about how she could function in SCHOOL 3, which was a much larger school, she did not have a clear answer or a coping mechanism in place, simply stating that she would “try” to handle situations that might come up (T. 152-5). She 12 Extended Year Services (“ESY”) were also recommended. was not definitive in any of her answers13; this lack of response does not disparage her in any way, but does demonstrate that she would not be emotionally prepared to meet the challenges of a larger institution where she would not have counseling, supportive staff or the crisis support staff that she has come to rely upon. From my observations of the Student’s timidity in answering questions, as well as the testimony of the MCPS witnesses, I do not believe that the Student is ready for inclusion into a large, generally unprotected and unsupported environment. Although it is commendable that the Student desires inclusion into the general student population, she is not yet emotionally or educationally ready for such a change. Her desire for change is motivated by her desire not to be included in a total special education population, however the fact is that she is in need of such a restrictive environment due to her emotional issues. There appears not to be any less restrictive environment consistent with her educational Support by MCPS and XXXX Center staff for placement at SCHOOL 1.
The efficacy of this placement was confirmed by all of the MCPS’s witnesses testifying Ms. XXXX, the SCHOOL 1 school counselor, has an undergraduate degree in special education with a masters degree in rehabilitation counseling. She has a Maryland State Teaching certification, teaching between 1974 to 1992, and acting as a guidance counsel for 10 years. The witness was admitted as an expert in special education (T.13-15). I found her testimony to be complete, informed, accurate and consistent with the other witnesses and the exhibits admitted into evidence in this case, leading me to consider her to be a persuasive witness. 13 In answer to questions regarding specific situations she might encounter in a larger school that she is not encountering in her present school, the Student’s answers were diminutive and vague: “Yeah, I could try;” “I don’t know,” “I’ve never been there,” and “ Probably.” Ms. XXXX testified that she has worked with the Student since the Student first enrolled at SCHOOL 1 (T.18). Ms. XXXX initially observed that the Student had difficulty successfully managing to complete her school day, and felt that she could progress academically if her emotional issues were not present (T. 19-20). The Student had difficulties managing to get through a school day due to her “rather significant” emotional issues (T.31). Ms. XXXX testified that the Student had considerable fears about other students, perceiving actions and words that were not directly observable by others (T. 20). The Student consistently complained that other students were looking at her, were out to get her or were saying things about her.14 While in class, the Student abstains from contact with other students. The Student consistently shows up late for classes or hides in the bathroom instead of going to class in order to avoid contact with other students (T. 37-8)15 and needs to have crisis management to bring her back to class. She views her relationship with her peers to be full of conflicts and has no positive peer relationships (MCPS #12). She has fears about other students, perceiving actions and words attributable to those students that only she can see or hear (T66). The Student claimed that other students were “out to get her” which consistently made her unhappy and unavailable for education. These same issues were present at SCHOOL 2 as well (XXXX, T.55 and XXXX, Despite the Student’s protestations, Ms. XXXX believes that the Student is comfortable at SCHOOL 1 due to its small size, supportive atmosphere and the presence of the XXXX Center staff, which as been written into her IEP (T. 44). Ms. XXXX expressed concern about the 14 More often than not, there was no provocation for striking out against other students. In one instance, the Student stated that another student was saying things about her; however, that other student spoke Russian and was not able to speak any English (T. 21). 15 The Student acknowledges this behavior, stating that she hides to avoid “situations” (T. 148). Student’s emotional stability in a large uncontrolled atmosphere such as at SCHOOL 3 which would not provide the emotional support from which she is benefiting at SCHOOL 1 (T. 46). The Students wo uld be “absolutely overwhelmed” at SCHOOL 3(T. 52, 54-5).16 XXXX XXXX is a therapist who has works at The XXXX Center at SCHOOL 1 for the past three and a half years.17 She has a undergraduate degree in history and took some graduate classes in elementary education. She was initially a schoolteacher but obtained her Master’s Degree in social work. Ms. XXXX is a licensed social worker. Ms. XXXX was admitted as an expert with respect to therapeutic services and social work (T. 61-63). I also found her testimony to be complete, informed, accurate and consistent with the other witnesses and the exhibits admitted into evidence in this case, leading me to consider her to be a persuasive witness. As a therapist, Ms. XXXX worked with the Student individually and in small group settings since late 1999. Sometimes, the Student withdraws into herself and hides in the school’s bathroom, missing hours of classes before she can be talked out of that room (T.69-70). In those instances, she does not go to classes, but stays in private therapy for 2-3 hours. Ms XXXX testified these severe emotional problems required professional intervention, and her progress was like a roller coaster (T. 77), with peaks and valleys, but generally showing gradual improvement.18 Ms. XXXX believes that the Student is progressing in her goals to limit this behavior (T. 71, 77) as the intervention sessions are getting shorter and the incidents are diminishing. These problems stem from paranoid and homicidal ideations based on fears that the 16 “And I would be very concerned that in a school of thousands of students who expect you to show up in class, and if you’re not there you’re not there, that that just would n ot be enough for her” (T. 48). 17 The mental health service that she provides at SCHOOL 1 has been provided under a number of different contractors ( T 61-62). 18 The GAF is a scale to determine how well a patient is functioning. Earlier psychological tests revealed a GAF of 35; presently it is in the 50-55 range (T. 88-89) demonstrating clinical progress. other students are going to tease her (T.77-8)(MCPS Ex. #3).19 The student is either unwilling or unable to discuss or attempt strategies to cope with these fears (MCPS Ex. # 3), even to the extent that she will not look her fellow students in the eye (T. 80). This fear is not limited to school settings, but to visits to shopping malls as well (T. 54). Ms. XXXX believes that she may have genuine hallucinations which cause her behavior (T.83). Although her brother thinks that her abnormal behavior is an attempt to get out of SCHOOL 1 (T.82, 83), Ms. XXXX believes that she cannot help herself and this is a manifestation of her condition. 20 The student gets along with staff better than she gets along with other students, as she believes that the other students are disabled and she is not.21 All of the witnesses consistently testified that the student’s interactions with staff were more positive than those with fellow students. (See e.g., MCPS #4, page 2 of 2). Placing the student in a school with a higher student to staff ratio would not be a positive step for the Student. She does not like being the lunchroom with 30 to 40 other students; Ms. XXXX believes that being in the lunchroom with two to three hundred students at SCHOOL 3 would be impossible for her to withstand (T. 81, 83). Ms. XXXX believed that the IEP appropriately places the Student at SCHOOL 1 as the student would not be able to function in a school setting without crisis management and counseling services readily available. Additionally, the Student is on a medication regiment 22 that must be closely monitored in the school by XXXX; it might not be monitored in a general 19 “And she talks about wanting to hurt people and wanting to hurt those boys that, in her mind, are going to tease her. And we’ve gotten into some fairly – she would love to have somebody kill them. She talks about that frequently - about having somebody kill - and she has used that word – those boys” (T. 7). 20 When asked the same question, Mr. XXXX answered that, “[s]he would have to be a master of patience herself, a master of manipulation to such a degree that she could carry this out and have this go for so long, so many hours, so many days. Given even the most dedicated teenager, I don’t think that they could follow through with it in the way that she did” (T. 122). 21 Even her parents refers to non-disabled students as “normal people” (Father, T. 54) and “regular kids” (Mother, T. 55). 22 The medication regiment currently consists of Prozac and Risperdal (T.88). education school (T. 88). These needs are met at SCHOOL 1 where there are full time outside counselors and a full time school psychologist; these services wound not be so readily available in a general education setting such as SCHOOL 3. Mr. XXXX, the school psychologist has undergraduate degrees in both psychology and music. He possesses a Masters of Arts degree and a Certificate of Advanced Studies in school psychology. Mr. XXXX is a certified school psychologist and has worked at SCHOOL 1 since 1996. (T. 93-94). Mr. XXXX was admitted as an expert in school psychology. His testimony was complete, informed, accurate and consistent with the other witnesses and the exhibits admitted into evidence in this case, leading me to consider him to be a persuasive witness. Mr. XXXX testified he has worked with the Student since 1999 and that she has made some progress at SCHOOL 1. Mr. XXXX agreed with Ms. XXXX that the student has some paranoid ideations concerning those around her – either at school, driving in cars, or at shopping malls (MCPS Ex. #7 and 11). She does not attempt to interact with her peers (T. 106-7), but chooses associations with staff and other adults (XXXX, T. 78)(MCPS Ex. #7). Mr. XXXX believes that the Student suffers from depression, thought disorder, non-compliance issues, impulse control, and anxiety; these conditions are in need of treatment including medication. Testing confirmed the earlier witness’ testimony (T. 97-101). Mr. XXXX believes that without crisis intervention services available to her, the Student would lose the self-control she has gained, and would continue to strike out against her peers whom she believes (without any proof) intended to harm her (T. 116). Mr. XXXX believes that she is progressing more than she has in previous years due to the structure and personal attention she receives at SCHOOL 1 (T-114), although the “roller coaster” affect was still present. Mr. XXXX believes that if crisis intervention and counseling services were no longer available to her (such as if she were to attend SCHOOL 3), she would not be able to manage due to her anxiety and paranoia (T.118), and her safety would be at issue (T. 119).23 All of these witnesses have well founded, fully supported opinions that the most appropriate placement for this Student is a small, self-contained special education school with a low teacher to student ratio and a professional mental health staff on-hand that can serve a crisis management function for the Student. One of the key elements of this mix is the presence of the XXXX Center staff and a full time school psychologist who services a limited number of students on a full time basis. The student to teacher ratio is also important to the Student’s emotional stability, which is calculated to lead to her availability for education. All of these witnesses agree that placing the student at SCHOOL 3 would be disastrous for the Student due to her emotional fragility and paranoid ideations. VIII. Conclusion.
Both party’s positions, testimony and exhibits were considered at length. It is apparent to me that the Student is in need of special education services due to her emotional disabilities which interfere with her availability for learning. The student needs the structure and intensity of support services available at SCHOOL 1 which would not be available in any less restrictive school setting, such as if the Student were enrolled in a special education program located within a general education school. The staff at SCHOOL 1 are able to manage the Student’s disability. Without this close support, the Student would not be provided with a “basic floor of opportunity that access to special education and related services provides.” Tice. 23 “Probably a setting that has more stimulation, more students and bigger will exasperate (sic) the problem as opposed to help it get any better” (T. 123). The Parents have presented no material evidence that suggests that the MCPS educators’ judgment is wrong with respect to the Student’s placement at SCHOOL 1, and the Parents have not met the burden of proof that the law places upon them. The IDEA does not deprive these educators of the right to apply their professional judgment, Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1997). Even if this burden were to have been placed upon the school, MCPS certainly proved that the Student’s enrollment at SCHOOL 1 is the most appropriate placement for her. Due to the Student’s emotional needs, the Student would not be able to function in a general education setting, even if placed in a special education program within that setting. The self-contained program operated at SCHOOL 1 is the least restrictive placement consistent with the Student’s CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law that the Individual Education Program (“IEP”) prepared for the Child by the MCPS, and the placement proposed for the Child in SCHOOL 1, affords the Child an opportunity for a Free and Appropriate Public Education (“FAPE”) for the 2002-2003 school year in the least restrictive environment consistent with her educational needs. IDEA, 20 U.S.C.A. § 1400(d) (2000); I ORDER that the Student’s placement at SCHOOL 1 continue for the 2002-2003 school REVIEW RIGHTS
Within 180 calendar days of the issuance of the hearing decision, any party to the hearing may file an appeal from a final review decision of the Office of Administrative Hearings to the federal District Court for Maryland or to the circuit court for the county in which the student resides. Md. Code Ann., Educ. §8-413(h) (Supp. 2001). Should a party file an appeal of the hearing decision, that party must notify the Assistant State Superintendent for Special Education, Maryland State Department of Education, 200 West Baltimore Street, Baltimore, MD 21201, in writing, of the filing of the court action. The written notification of the filing of the court action must include the OAH case name and number, the date of the decision, and the county circuit or federal district court case name and docket number. The Office of Administrative Hearings is not a party to any review process.

Source: http://www.msde.state.md.us/SpecialEducation/hearing_decisions2003/02-H-MONT-220.pdf

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