LCPS's Memorandum on Behalf of LCPS to Initiate Due Process Proceedings Against The Hartmanns

LOCAL ADMINISTRATIVE HEARING
IN RE: MARK HARTMANN

MEMORANDUM ON BEHALF OF LOUDOUN COUNTY PUBLIC SCHOOLS

I.

INTRODUCTION

This hearing was initiated at the request of the Loudoun County Public Schools ("Loudoun") as a result of its concerns about the inappropriateness of the placement of Mark Hartmann ("Mark") in a regular education classroom for his academic instruction. There is no dispute between the parties about the fact that Mark should have some mainstreaming opportunities. Loudoun sincerely believes, however, that Mark will not and does not derive educa-cional benefit from academic instruction providedin a regular program.

Loudoun has proposed placing Mark in a class for autistic students to receive the academic portion of his instruction, fihile continuing to be mainstreamed in areas such as art, music, physical education, recess and, library. This program provides the appropriate balance between his significant educational needs and the opportunity for mainstreaming.

The decision made in this matter is critical because the decision affects Mark and the other students who are presently educated in the class with Mark. Also, due to the lengthy nature of the administrative and judicial proceedings expected to follow in this case, a final decision will not likely be made in time to change Mark's placement during the current school year. See e.g., School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985). The determination made in this case will determine where Mark will be educated for the foreseeable future.

Mark is at a crossroads in his educational career. One road leads him to a classroom where he can learn the functional academic skills he needs and also learn to communicate. The other road continues him in a placement where he is maintained for alleged social reasons but where he cannot derive educational benefit. In the minds of the professionals from the Loudoun County Public Schools, the choice is a clear one. Mark's need to receive an appropriate education dictated the initiation of this hearing. Loudoun urges the Hearing Officer to order Mark's placement at Leesburg Elementary School so that Mark will receive the appropriate educational services to which he is entitled under the Individuals With Disabilities Education Act.

II.
STATEMENT OF FACTS

Mark Hartmann is nine years of age and is ,presently in the third grade attending Ashburn Elementary School in Loudoun County, Virginia. Mark is a severely disabled child with deficits in all developmental areas -- communication, social development, cognition and academics. Tr. III, 75-76.1 These severe problems are ones that Mark has had for a long time. In 1988, Mark was identified by the Medical College of Virginia in Richmond, Virginia, as having autistic-like behavior problems, mild cognitive deficits and severe language impairment. SB 1.2 The diagnosis was redefined as "pervasive developmental disorder of an autistic type." SB 5. Mark was then placed at a regional special education program serving autistic students known as Peninsula Area Cooperative Educational Services ("PACES") in May 1988.3 SB 4. Mark remained in this program through the 1989-90 school year. SB 7, 11. It was recommended that Mark return to the PACES program for the 1990-91 school year. SB 10, 11. Throughout his placement at PACES, Mark continued to have problems with inappropriate behaviors and did not engage in social interactions. SB 11, 15.

A. Mark's Educational Program in Illinois.

During the summer of 1990, the Hartmanns moved to Illinois. Mark was placed by the Lombard School District in a private day program which servedautistic students. SB 14. The school was known as Little Friends or Krejci Academy. SB 16. Mark had just turned five when he entered their program. SB 12. Upon entry to Little Friends, it was noted that Mark "still prefers to engage in his own solitary activity vs. the group activity unless redirected byan adult." SB 13. He used pictures, several signs and redirecting adults through body language in order to communicate. It was noted that he had a very short attention span and enjoyed one-to-one activities.

On May 10, 1991, an IEP was developed for Mark to return to Krejci for the 1991-92 school year. SB 16. It was noted in the proposed IEP under present level of functioning that "Mark has demonstrated a need for consistency and structure. His cognitive, social and emotional gains need to be continually reenforced." SB 16. Skills that Mark was taught at the time pursuant-to the 1991-92 IEP included increasing his attention span from one to three minutes to three to five minutes, allowing peers to come near him, and learning some basic matching skills and some grooming and living skills. It is important to understand that these were Mark's skill levels at the time of his entry into an inclusion program. His skill levels have increased negligibly during the three years of inclusion.

Although it was proposed that Mark return to Krejci for the 1992-93 school year, at the insistence of his parents he was placed a half day in a kindergarten program at Butterfield Elementary School and a half day in the program at Krejci Academy. SB 17. A one-on-one aide was employed for Mark because "[h]e responds to tasks much better if he is in a 1-1 situation." While in the dual placement program, Mark continued to have significant behavioral problems. Tr. I, 172-173, 229, 235. It was also noted that at Butterfield he had problems with kicking students and staff most likely from frustration. SB 18. Personnel at Butterfield observed that they were " requiring more compliance to the program as opposed to operating in the parallel program. This does cause more evidence of frustration & agitation." Many of the behaviors which were seen when Mark moved to Loudoun for the second grade were occurring in the kindergarten program. Tr. I, 172-173. While in kindergarten, Mark was noted to be "doing some matching of numbers, colors, & letters. He does not have the concepts at this point nor is there letter recognition." SB 18.

Mark was placed full time in a regular first grade for the 1992-93 school year. PE 16.4 Whereas previously Mark had been communicating by pointing to pictures, gesturing or signing, in the first grade facilitated communication was utilized with him. Tr. I, 243, 254. The testimony at the hearing established that the use of facilitated communication with non-verbal students is controversial.' with facilitation, it is difficult to validate whether the students' answers are supplied by themselves or by the facilitators.5

It was noted in February 1993, while in the first grade, that Mark could fill in missing numbers in math but "[s]till does not have the adding concept." PE 11. In reading, Mark was believed to be reading, but his reading ability was assessed using facilitated communication. Id.; Tr. I, 254. In giving advice to the personnel who would work with Mark the next year, his first grade teaching assistant noted "plan for a short attention span; if he is greatly agitated, he shows disruptive behaviors (loud noises, taking off shoes) tell him 'We must finish this page (or do 1 more problem, work 1 more minute -- use a timer) and then we will., " PE 11. It was further noted that difficult tasks for Mark were sitting for long periods of time, seat work, and sharing a computer with a partner. Significantly, the aide acknowledged in her report that "We are working on skills for independence, Social interaction, and to a lesser extent Academic skills." PE 11 (emphasis added). 6

Even though the staff at Butterfield knew Mark would be leaving to move to Virginia, they met May 13, 1993, and developed an IEP which called for a full inclusion program for the second grade. PE 18. In the end of the year teacher report from Butterfield, it was erroneously suggested that Mark had minimal problems academically. PE 19. The teacher acknowledged that none of the staff who had worked with Mark had worked with autistic children before. It was also acknowledged in the same report that Mark did not initiate social contact with his classmates and that Mark needed to be taught one-on-one by his aide.

In contrast with this somewhat glowing report was the testimony of Mark's one-on-one aide who testified during the due process hearing. Mary Ann Mrazek noted that Mark almost never got the correct answer unless he was facilitated. Tr. I, 261.

He had no spontaneous language through the Canon communicator. Tr. I, 257. Mark was taken to a vacant classroom almost every day. Id. Ms. Mrazek continued to remove him from the classroom in the afternoon daily during math and sometimes for other subjects because he did not appear to be benefiting from the lesson in the classroom. Tr. I, 257-258. He needed to be worked with one-to-one in a setting where there were no distractions. Id. As late as May or June 1993, Mark would sometimes vocalize loudly and hit himself from frustration. Tr. I, 262. He was not making any overt approaches to the other children. Tr. I, 263.

Mark then enrolled in the Loudoun county Public Schools for the 1993-94 school year at Ashburn Elementary School. His inclusion IEP, which was his current placement, was implemented by the personnel in Loudoun.

 

B. The Team of Professionals Who Worked with Mark During the 1993-94 School Year in Loudoun.

Mark had a competent and experienced team of professionals assigned to work with him upon entry to Ashburn Elementary School. Those individuals consisted of the following:

DIANE V. JOHNSON. Ms. Johnson had a total of thirteen years teaching experience in the kindergarten, first and second grades. Tr. I, 20. Ms. Johnson taught Mark his entire second grade year. Tr. I, 20-21. She had previously taught a student who was believed to be autistic. Tr. I, 91.7 She studied about autism prior to Mark entering her class. Tr. I, 151-152. Ms. Johnson met the Hartmanns and Mark before school began. Tr. I, 95. She showed Mark his classroom, reviewed his records and the video tapes provided by the Hartmanns. Id. She learned facilitated communication from Julie Hunt. Tr. I, 84-95. Ms. Johnson studied facilitated communication before Mark began school and utilized the speech and language therapist, Ms. Clement, for assistance in that area. Tr. I, 151-152.

Over the course of the year, Ms. Johnson had additional support from an autism and behavioral specialist (Frank Johnson), a special education professional who modified curriculum (Ginny McCullough), an inclusion specialist (Lois Eddy);· a facilitated communication and autism expert (Julie Hunt), an autism expert (Gail Mayfield), a mathematics expert (Dr. Rose), the principal (Laurie McDonald), and inclusion advisor (Jamie Ruppman). Tr. I, 80-81. In addition, during the course of the year, Ms. Johnson consulted with Mark's teacher from the prior year (Ms. Wangrow).

Ms. Johnson prepared her class to accept Mark by explaining they "were very lucky to have a special child like Mark and that our classroom was the only one in the entire county that had a special child like Mark so we were going to learn wonderful things about special children and the differences and the similarities." Tr. I, 31.

CAROLYN CLEMENT. Carolyn Clement is a speech/language pathologist with 12 years experience. Tr. II, 9. She had previously worked with four students who had autism. Tr. II, 11. She also had read extensively about autism, learned about autism in conjunction with her college training, consulted with a professor when she first received Mark and read the reading material Ms. Hartmann gave her in addition to whatever reading material she could find about autism. Tr. II, 12-13. She worked with Mark an hour a day during his second grade year and during his third grade year. Tr. II, 14. Ms. Clement also consulted with the speech language pathologist who had Mark in Illinois. Tr. II, 15. She reviewed Mark's materials in advance of the school year and met with his parents. Ms. Clement had training in facilitated communication in the spring of 1993, before Mark arrived. Tr. II, 116. A facilitated communication expert directly consulted with Ms. Clement and with Mark for a day in September 1993. Tr. II, 53. In addition, Ms. Clement consulted "all of the way through" with her speech and language supervisor who had expertise in autism. Tr. II, 119, 179.

SUZ LEADER. Ms. Leader was the one-to-one aide who accompanied Mark during the entire school day in second grade. She was part of the weekly team meetings in which the curriculum would be modified for Mark. Tr. I, 83-84. She was trained in facilitated communication by Julie Hunt. Tr. II, 84-85.

LAURIE MCDONALD. Ms. McDonald is principal of Ashburn Elementary School. She had prior teaching experience in the third grade. Tr. II, 189. Ms. McDonald arranged for Mark's class size to be reduced in number and to assign higher functioning students so that they would require less work and less of the teacher's time. Tr. II, 194, 196. Ms. McDonald consulted with the principal of an included school, attended two workshops on inclusion in the fall of 1993 and April of 1994, read books on inclusion and supervised a program in which an autistic student was enrolled previously. Tr. II, 206-210.

FRANK E. JOHNSON. Mr. Johnson is the Supervisor of Special Education. Tr. II, 235. He supervises the programs for emotionally disturbed, vision impaired and autistic students. Tr. II, 236. He previously had taught at Grafton, a school serving autistic students and had one autistic student in his class for two years. Tr. II, 238. In addition, he had worked with approximately 10 autistic students on a direct teaching basis. rd. Mr. Johnson advises the teachers of autistic students in Loudoun and participates in IEP meetings for development of educational plans for autistic students. Tr. II, 239. Mr. Johnson participated in weekly team meetings of the individuals who were working with Mark.8 He observed Mark at least every other week during the second and third grade and worked with the team several times a week initially. Tr. II, 254-255.

Mr. Johnson was responsible for developing a behavior management plan for Mark. Tr. II, 257-258. He testified that he had had prior training in the development of behavior management plans. Tr. II, 347-348. He was an expert in structuring mainstreaming opportunities for students with autism. Tr. II, 347-348.

VIRGINIA (GINNY) MCCULLOUGH. Ms. Mccullough is a special education teacher with 20 years experience. Tr. III, 57-58. Beginning in February 1994 she worked directly with Mark three hours a week and participated with the team once weekly. Tr. III, 59. She spent approximately five to six hours weekly on Mark's program. Tr. III, 60. Ms. McCullough had prior training in including young children with disabilities in regular programs and worked with about 15 to 20 included students. Tr. III, 61. Ms. McCullough had taught three children with autism and had taught children with pervasive developmental delay9 which is a precursor to the diagnosis of autism. Tr. III, 93. Ms. McCullough spent time each week modifying the curriculum for Mark so that he could be included in the regular classroom. Tr. III, 59.

MARY KEARNEY. Ms. Kearney is the Director of Special Education in Loudoun County. Tr. V, 276. She has training in inclusion. Tr. v, 275. Ms. Kearney has been a program super-visor for students with mild, moderate and severe disabilities and with developmental delays. Tr. v, 276. She was the initial contact in Spring 1993 when the Hartmanns believed they would be transferred to Virginia. She immediately asked for Mark's records. Tr. V., 278. She has had training in inclusion practices since 1989. Tr. V, 278-279. In addition, she had prior experience in designing educational programs for students with autism. Ms. Kearney reviewed Mark's educational records in the summer or spring of 1993, talked with his principal, Ms. Truax, and reviewed reports of Mark's progress in Illinois. Tr. V, 278-280. Ms. Kearney set up the meeting between the Hartmanns and the Ashburn Elementary School staff prior to the start of the school year. Tr. V, 281. She made sure that the Ashburn staff had available the records and the video tapes prior to school starting. She shared Mark's records with Mr. Johnson and with Ms. Starliper (the supervisor of the program for students who have speech and language impairment). Tr. v, 284.

Within a couple of weeks of the beginning of the school year, Ms. Kearney provided an inservice on inclusion to all of the staff at Ashburn Elementary School. Tr. V, 285. She also addressed autism in that inservice. Tr. v, 286. Ms. Kearney arranged for Carolyn Clement, Diane Johnson, Frank Johnson, Ned Waterhouse and herself to attend an all day program on inclusion on October 15, 1993. Tr. V, 286-287. She also observed Mark as frequently as one time a week through the month of October. Tr. V, 287. The central administrative staff also arranged for training in facilitated communication and in autism to be provided to the staff. Tr. V, 288.

DENISE POLEND FATZ. Ms. Fatz teaches third grade at Ashburn Elementary and has Mark Hartmann in her class now.Tr. III, 3. Ms. Fatz is in her seventh year of teaching and has a background in special education. Tr. III, 4. She has previously taught an autistic student. Id. Ms. Fatz attended a workshop on inclusion in September 1993 and in April 1994. Tr. III, 5. She has also consulted with numerous professionals "inside and outside of Loudoun about Mark's program. Tr. III, 7. outside consultants who are experts in autism, including Gail Mayfield, have continued to provide inserviee to the staff who work with Mark for the 1994-95 school year. Tr. III, 8. The aide who works with Mark on a one-to-one basis in third grade has experience with autistic children and her own child has Downs Syndrome. Tr. III, 9-10. Ms. Fatz prepared her children in advance to accept Mark in the program and answered any questions that arose after his arrival. Tr. III, 52-53. Clearly, the team that was put together to work with Mark during both his second grade year and third grade year was an experienced group who were committed to making inclusion work for Mark, if at all possible. Ms. McDonald said Ms. Johnson was the best teacher to make inclusion work for Mark. Tr. II, 202. Ms. Mccullough acknowledged that Ms. Johnson and Ms. Fatz are excellent teachers. Tr. III, 79. In comparison to the team in Illinois, the Loudoun team alone was experienced in working with autistic students and was trained in inclusion. The composition of the Loudoun team was similar to Mark's Illinois team which consisted of the pupil personnel services director, a regular education teacher, the parents, the principal and a special educator. Tr. I, 207-208.10 Loudoun's team for Mark was well trained and experienced.

 

A Description of Mark in the Educational setting.
1. Mark's Behaviors.

Mark cannot talk but he can make sounds. He makes constant noise in class and cries and screeches. Tr. I, 22-23. He engages in persistent misbehaviors such as flapping his hands, throwing himself on the floor, kicking his feet, throwing temper tantrums, laying down on the floor, taking his shoes off, taking his clothes off, wandering around the class, hitting other students, pinching other students, filtering objects, and putting his hands down his pants to hold his penis. Tr. I, 22-29. In addition to the loud noises Mark makes, he also makes routine continuous sounds and mouthing noises. Tr. I, 35. Mark has a happy noise which goes on all day long. Tr. II, 20. Mark wiggles out of this chair, drapes his legs over the arms of the chair, screeches, has self stemming behaviors, rubs elbows, puts things in his mouth and makes verbalizations all day long. Tr. II, p. 19.

During his third grade year, Mark continues to kick and pinch the other students in his class. Mark hit Ms. Fatz in the face this year and hit a student from another class. Tr. III, 19. He continues to hold his penis in class. Tr. III, 20. Mark remains the tallest child in the classroom. Tr. III, 21. Mark exhibits misbehaviors when you give him work that challenges him academically. Tr. I, 154-155; Tr. II, 39.11 While the parents attacked the behavioral plans that were in place for Mark, the program utilized by Loudoun was similar to that used in Illinois. In Illinois, they charted Mark's behaviors and took a frequency count. Tr. I, 247. They utilized edible reinforcers. Tr. I, 195. On the other hand, Loudoun used edible reinforcers only for a month. Tr. I, 145, 146; Tr. II, 258-261. Loudoun implemented a behavior plan for Mark throughout the year. 12 Tr. II, 258. The system varied depending on Mark's needs at the time. Tr. II, 316. The staff recognized that Mark's behaviors diminished when he was presented with information closer to his functioning level. Tr. II, 321. The charting system results were shared with the Hartmanns weekly. Tr. II, 151.

2. Mark's Distractibility and Short Attention Span.

Mark has a very short attention span. He cannot stay in his seat for long periods of time. He wondefs around the class and has hit other students. Tr. I, 25. Mark is only happy when he is doing very basic academic work and supplying information that he already knows. Otherwise he is frustrated, upset and sad and sometimes will just cry. Tr. II, 86-87. The speech and language therapist observed that Mark's attention span was only two to three minutes and he needed lots of breaks in his academic programming. Tr. II, 57.

Mark is highly distractible. Tr. III, 22, 71-72. His attention span is roughly several minutes while third graders have an attention span of forty-five to sixty minutes. Tr. II, 273. Mark becomes agitated if his classroom is noisy. Tr. II, 29-30; Tr. III, 21-22. Frank Johnson noted that distractions are upsetting to Mark and that, as a result, he cannot learn academics in a large class.Tr. II, 281. (Note: This same degree of high distractibility occurred in Illinois and was one reason Mark was removed from the regular classroom every afternoon. Tr. I, 258.) Ms. Johnson also observed that Mark had a very difficult time in class in the afternoon. She stated "that was his crankiest time of the day at the end of the day. He really would get up more often and go back to the bean bag chair and didn't appear to want to participate in that." Tr. I, 67. In a class with 21 students, there are a lot of distractions for Mark. Mark continues to be adversely affected by distractions in Ms. Fatz's class. Tr. III, 21-23. As a result of this distractibility Mark needed to learn in a small group and transfer this learning to a larger group setting. Tr. III, 71- 72.

 

3. Mark Does Not Model His Peers.

Mark does not appear to be aware of the students in the class; it has been observed ever since his preschool years that he did not interact w!th his peers and peer interaction has been a goal in his IEPs. SB 4, 7, 10. Ms. Johnson noted that he did not participate to a great extent in class activities in second grade and would sit while the class was engaging in their activities. Tr. I, 41-43. She further testified "I didn't feel that anything the other children did were/was of any interest to Mark." Tr. I, 76. Mark could not even relate to the pictures of the other students in the class. Tr. I, 76-77. Ms. Johnson observed that Mark was very much by himself in the classroom and she saw no gains in the social area by including him. Tr. I, 38.

The fact that Mark does not interact with his peers was underscored by the observations of Ms. Clement. Ms. Clementstated that in the extensive period in which she worked with Mark, he appeared to be agitated by the noise and the movement in the class. Tr. II, 31. One day when the students were gone, Mark did not even notice the difference. Id. He followed the class routine by himself. Id. Frank Johnson also observed that Mark did not imitate other students. Tr. II, 247. He observed that Mark played on a solitary basis. Tr. II, 248.

Even now that he is in the third grade, Mark does not do any of the skills of the other students in the class, does not imitate or interact with those students and exhibits the same behaviors as in the previous years. Tr. III, 15-16. Mark will engage in no cooperative learning or group activities in third grade. Tr. III, 22-23. Ginny McCullough concluded that Mark could not learn in a regular classroom because of the visual stimulation. Tr. III, 71.

 

4. Mark Functions at a Pre Kindergarten Level.

There is a significant and marked disparity between Mark's educational functioning and that of the students in his classes. Mark still does not understand addition even of the numbers 1 + 1. Tr. I, 46-47. He engages only in rote skills and forgets a skill once he has been taught it and needs to have it retaught. Tr. I, 49. He is functioning in math at a pre-kindergarten level. Id.; Tr. III, 13-14. Mark has no written language skills. Tr. I, 52. The most he can do is write his first name while the other students are writing paragraphs. Tr. I, 50. Mark cannot read. While the students in a third grade class know approximately 1,000 words, Mark may know three. Tr. I, 56; Tr. II, 67, 77-78. Mark is on a pre-kindergarten level in reading as well as math. Tr. III, 13 14. Mark's skills are significantly lower than the third graders. SB 79.

 

5. Mark Requires a Communication Board for Independence, Rather Than Facilitation.

Mark has been utilizing a communication board since March 1994 in order to communicate.13 Tr. II, 23. Mark can use the communication board without facilitation and this approach allows him to be independent. Tr. II, 25-26. It makes much more sense for Mark to utilize a method of communication that he can initiate by himself than one which requires him to have an adult to hold his hand to supply responses. Mark's communication board uses pictures rather than words. SB 64. Mark could not utilize a communication board with words even when the words were in the same place as the pictures. Tr. II, 27-29. with the communication board Mark was able to communicate with his teacher. Tr. I, 78-79. Ms. Clement taught the communicationboard to Mark in a one-to-one setting.

When Mark left Krejci Academy in Illinois, it was not believed that he could read. Following the use of facilitated communication with Mark in a mainstream setting in the first grade, it was believed by the educators in Illinois that Mark was miraculously reading at a low first grade level. PE 19, 24. The only basis for this conclusion on their part was the answers Mark would produce when he was facilitated. Facilitation requires an adult to place her hand on Mark's hand or Mark's arm while he is supplying answers.

The testimony revealed that Mark has the motor ability to press the small keys on a Cannon communicator independently. Tr. I, 57, 59. Thus, it is unclear why he would need physical assistance from an adult to point to an entire word or to a picture. The fact that Mark cannot produce correct answers without facilitation underscores the inherent unreliability of facilitated communication. Id.

Mark's second grade teacher initially believed that Mark could read based on the reports from Illinois. She observed, however, that he moved his finger rather fast along the pages and kept turning the pages, never getting stuck on a word. Tr. I, 56. The typical student got stuck on words occasionally and would hesitate. Ms. Johnson tested Mark informally on his reading comprehension and found that he was often wrong and could not comprehend when he read silently. Tr. I, 57. She concluded that facilitation was not appropriate with Mark and raised the issue with the speech and language therapist, Ms. Clement. Tr. I, 56, 59.

Ms. Clement was initially very willing to use facilitation with Mark and had prior training. Tr. II, 44. She knew that facilitation was controversial. When she was preparing for Mark and consulted with her college professor, she was told that the professor disagreed with the use of facilitation. Tr. II, 12. When Ms. Clement attempted to test the reliability of facilitation with Mark, she found that Mark could not get an answer correct when she closed her eyes even if it were material that had been reviewed previously. Tr. II, 50. Also, Mark could not identify one picture out of four when he had been shown that picture repeatedly while Ms. Clement was out of the room and then attempted to duplicate it by pointing when she returned to facilitate him. Tr. II, 50-52. The instructional aide who worked with Mark daily in Illinois testified that Mark just about never got a correct answer unless he was facilitated. Tr. I, 261.

Ms. McCullough testified that she did not believe Mark could read. Tr. III, 67. While reading, he did not look at the book so that he could see it. He also would be in the wrong part of the story. Tr. III, 67. She concluded he could not read and worked with him on environmental words. Tr. III, 69, 70.

Everyone agreed that facilitation for communication with nonverbal students is an extremely controversial technique. The testimony from those who work directly with Mark is that the use of facilitation could not be validated with Mark. Given the fact that Mark does not produce correct answers unless facilitated and gets frustrated when presented with very simple math and reading academic problems, it is apparent that Mark's functioning levels are where the personnel in Loudoun have identified them to be, namely at a pre-kindergarten level. Continued use of facilitation with Mark is inappropriate and will only serve to disquise his true abilities and to frustrate him in pursuit of his academics.

 

6. Mark Needs One-to-One Instruction to Learn.

Mark's academic gains have only come when he has been taught one-on-one. Tr. II, 34. Ms. Johnson observed that Mark learns one-on-one and not in a class with twenty-one students. Tr. I, 103. This observation of the sole method by which Mark learns was reinforced by Mr. Johnson (Tr. I, 87), and Ms. Clement (Tr. II, 59). One-to-one instruction is necessary because Mark's academic needs are very great. He has significant deficits in. all areas -- social, academic and communication. 'Mark is very low functioning academically and functions in the mentally retarded range. Tr. II, 253.14 Denise Fatz also observed that Mark functions in the mentally retarded range. Tr. III, 15.

 

7. The Need for Supplemental Aides and Services Is Too Great for a Regular Class Placement.

In order for Mark to be included in a regular class, there are extraordinarily intensive demands placed on the staff and the other students by the parents. Those requirements are as follows:

1. Mark requires a one-to-one aide. SB 20; Tr. V, 226.
2. Mark requires weekly team meetings with on-going involvement by a special education administrator, his teacher, his aide, speech and language therapist and the various autism consultants. Ms. Fatz testified that she alone spends five to six hours per week in meetings concerning Mark. Tr. III, 15.
3. His teacher must spend approximately one hour a day modifying curriculum for him. Tr. III, 14.
4. All staff must be trained in inclusion and facilitation. Tr. V, 226-227.
5. The parents believe a facilitation coordinator is required. Tr. V, 226. The inclusion coordinator must spend about six hours a week in both direct and indirect services for Mark.
6. The parents believe additional consultation is required from The Virginia Institute for Developmental Disabilities ("VIDDS"). Tr. V, 230. Their services may last for a year and involve multiple people at an unknown cost. Tr. v, 51-54, 61-62.
7. The parents want the speech and language services and occupational therapy services to be provided in the classroom while the other students are receiving instruction. Tr. II, 93. This approach would cause further disruption for the students in the class.
   

As Ms. McDonald, the principal, appropriately summarized, "In my experience as an administrator and specifically the last two years with Mark, I have never seen a student that has taken up as much time -- teacher time as Mark -- in the amount of ---planning, the after school planning, the meeting with parents, with meeting with the specialist, the formal meetings, the informal meetings, just the daily preparation materials with the teacher asaistant." Tr. II, 199.

 

8. The Affect on Other Students in Mark's Class.

Mark's placement in a regular classroom also adversely affects students in his class. Mark's teacher sometimes has to shout above Mark when he is making his routine noises. Tr. I, 35. It is difficult for her to have the full attention of the class with Mark in the room. Tr. I, 37. It is necessary to adjust the lesson plans for the rest of the class so that more difficult matters are taught when Mark is out of the room. Tr. I, 35-36.

The students learn less because of Mark's presence. During the second grade the students did not have an opportunity to participate in a writing program which they were supposed to have on a weekly basis. Tr. I, 133. Ms. Johnson believed that two children in particular were hurt because she did not have enough time for them as a result of Mark's requirements. Tr. I, 134. The children do not learn to accept his noises and to stay on task. Tr. I, 136; Tr. III, 27. Two adults in a classroom are required to keep Mark on task. Tr. II, 35. The presence of all the additional personnel who work with Mark in the classroom is distracting to the other students. Tr. II, 94. Furthermore, the other children do not understand why Mark is treated differently for his misconduct. Tr. II, 95; Tr. III, 28-29. Some students are intimidated by Mark. Tr. III, 21. They are concerned about his hitting and pinching. Tr. III, 28-29.

The parents of various students are now questioning the placement of their children in class with Mark. Some have .asked that their children be moved out of his class. Tr. II, 199-202.

The question is appropriately asked as to whether it is appropriate to require all the students in the classroom to have their education suffer due to the distractions and the turmoil caused by Mark's presence. Is their academic sacrifice warranted when Mark has shown no gain from inclusion? It is also necessary to consider whether these intensive services in regular education have benefited Mark. Mark is not making educational progress at this. As long as he is in a program with twenty some other students, and all the distractions that flow from that setting, it is unlikely that he will learn. Mark is a needy child who learns one-an-one and not in a group program and not from modeling. In other words, Mark does not learn in a regular education class.

 

D. The Autism Program at Leesburg Elementary School.

There is a program in Loudoun which is designed specifically for Mark Hartmann and that is the autism class at Leesburg Elementary School. The program is located at Leesburg Elementary School. 15 The teacher in the program has a background working both in early childhood special education and mental retardation. Tr. II, 282. A team approach is utilized for working with her students. Tr. II, 282. There are four students in the autism class presently whose ages range from five to eight. Tr. II, 287; SB 78. Only one of the four students has no oral language. SB 18. These students are similar to Mark cognitively, socially and academically. Tr. II, 287-293; SB 78. The students follow a picture schedule which is posted on the wall to enable them to know which activity will come next during the day. Tr. II, 284. There is an aide assigned full time to the classroom so that presently there is a two-to-one student-teacher ratio, allowing for much one-to-one attention. Tr. II, 294. As a result of the intensive staffing, there is enhanced opportunity to plan the educational program for the children. Id.

Ms. Clement had observed the autistic program during the 1993-94 and 1994-95 school years and believed the program was appropriate for Mark. Tr. II, 83, 173. Frank Johnson testified that the proposed IEP calling for placement in the autism program offered the appropriate program for Mark. Tr. II, 293. As Ginny Mccullough forcefully testified "all the skills Mark needs are taught in the autistic class. They have the opportunity to practice their skills and generalize into other situations. These skills are not taught in the third grade class." Tr. III, 86. She noted that the communications skills Mark needs are also taught in that class. Tr. III, 83-84. Ms. McCullough testified that Mark required a placement in the autistic program at Leesburg. Tr. III, 81-82.

Ms. Johnson appropriately questioned why Mark should remain in a fully included program where he is not learning when there is this perfect program for him at Leesburg Elementary School. Tr. I, 88-90. Ms. Johnson observed that the children could take breaks when they needed them as Mark requires, that the swing was there for Mark to relax with which was another need that he had and that there were a number of wonderful outlets for Mark. Id.

There would be many similarities between Mark's placement at Leesburg Elementary School and his current placement at Ashburn Elementary School. SB 20, 57. Mark would continue to be placed in a regular education school. Mark's school day would continue to be approximately six hours in length. Of the six hours, one hour per day would still be reserved for speech and language services, and thirty minutes per week would be set aside for occupational therapy services. Id. Mark would continue to be mainstreamed with the regular education third graders for recess, art, music, physical education and library. The total time in these mainstream activities would be 200 minutes per week. SB 57. Mark would continue to go home for lunch, which takes approximately one hour and ten minutes to one hour and twenty minutes daily. Tr. I, 54, 63. Mark presently receives three hours of autistic services weekly. SB 45. Those services would now be provided in the autistic classroom and would be further enhanced. These listed activities, which remain similar to the present program, account for approximately three hours and forty five minutes daily of Mark's instruction. This leaves Mark with only an approximate two and one-half hours of instruction changes daily from his current IEP. The additional time will allow for the instruction in academics in the autism program on a one-on-one basis. 16

Illinois did not have a program such as exists at Leesburg Elementary. Illinois could not offer Mark the advantages of an autism placement in a regular education setting. Ms. Truax testified "I don't know that we ever had an autistic program for youngsters. We've never had such a thing." Tr. I, 217. Their autistic students' sole option was Krejci Academy. Tr. I, 198. Loudoun's program alone combines instruction geared to Mark's autism and mainstreaming.

The reason for this hearing is to determine the educational environment in which Mark will receive his academic instruction in communication skills, basic living skills, social skills and academic skills. Mark has not learned those skills in a regular classroom and he requires the structure of the autistic class to acquire the educational skills which will benefit him. As Ms. McCullough noted "[Mark's] skills have to be taught in a different way, in a different sequence and even a different group of skills, he's going to have to learn from what his typical functioning peers are learning. I am concerned that if he stays in the regular program, he's going to be sitting there and doing things and learning things that are not going to be useful to him in his life." Tr. III, 81.

Under Loudoun's proposed IEP, Mark will continue to have consistent and ongoing contact with his regular education peers but he will have the advantage of receiving educational instruction appropriate to his needs. That combination can only be provided in the autism program at Leesburg Elementary School. It is absolutely of no benefit to Mark to remain in a regular education third grade class at Ashburn Elementary School when he does not model the other students, he interrupts their education and, most significantly, cannot engage in the same learning activities those students are learning. Mark needs no further wasted academic time. As Ms. Johnson forcefully stated, "I felt like he lost a year in my classroom." Tr. I, 90. 17

 

III.
ARGUMENT

The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"), does not require that students with disabilities be placed in regular classes. Under IDEA there is no single placement which is appropriate for every student. Students with disabilities must be placed based-on their "unique needs" and not on the mistaken belief that the federal law requires that all special education students must be included in regular classes.l8 20 U.S.C. S 1401(a) (20). Mark Hartmann's educational needs dictate that he be placed in a regular education school in an class for the autistic with an opportunity for mainstreaming for art, music, physical education, library and recess. Loudoun County's proposed IEP for the 1994-95 school year 'satisfies Mark's educational needs as defined by the law and the experts.

A. Not Every Student With a Disability Should Be Placed in Regular Education.

Inclusionists would say that every student with a disability must be placed in a regular education class with supplemental aides and services provided to them in that setting. This view is a misstatement of the law. IDEA does not provide that all students with disabilities be mainstreamed. Rather, the exact requirement contained in the law specifies that the state must establish

...procedures to assure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily... 20 U.S.C. § 1412(5) (b); 34 C.F.R. § 300.550(b).

By limiting mainstreaming with the language lito the maximum extent appropriate," IDEA contemplates that there are some children who cannot be appropriately served in a regular education environment. Recognition of placements other than the regular classroom is authorized by IDEA. IDEA permits placement of students with disabilities in private schools and in residential schools when their educational needs require such a placement. 20 U.S.C. § 1401(a) (16) and § 1413(a) (4) (B); see also Martin v. School Bd. of Prince George County, 3 Va. App. 197, 348 S.E.2d 857, 35 Ed. Law Rep. 302 (Va. App., Oct. 7, 1986); Kruelle v. New Castle County School District, 642 F.2d 687 (3rd Cir. 1981). The Code of Virginia also authorizes placements for students with disabilities out of the regular classroom. Va. Code § 22.1-218(A). Thus, it would be contrary to law for a school division to adopt as a policy a requirement that all special education students be placed in regular education classes. Placements are based on individual assessments of the individual needs of the students. In Mark's case, the individual assessment of his needs, as specified in his proposed Individualized Education Plan (IEP), requires his placement in that autistic class at Leesburg Elementary School.

The starting point for determining the placement for a student with disabilities is the development of an IEP. Loudoun developed an IEP for Mark on May 31, 1994. That IEP called for his placement for academics in the autism program at Leesburg Elementary School. Whether that IEP provides Mark with a free appropriate public education is determined by the two-prong test established by the Supreme Court of the united States in the case Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982). In (now IDEA) and (2) was reasonably calculated to enable a child to Rowley, the Court held that an appropriate IEP was one where the school board (1) complied with the procedural requirements of ERA Rowley, supra at 206.", receive educational benefit. Id. The Hartmanns do not contest that the IEP that was developed for Mark was developed using appropriate procedures. There was no evidence presented at the due process hearing which would indicate that there was any procedural irregularity with the IEP. Case law tells us that when a procedurally proper IEP has been developed, the resulting IEP is one that is designed to confer educational benefit.

We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what congress wished in the way of substantial content in an IEP.

This result is consistent with the directive of the Supreme Court to leave questions of educational methodology to the prerogative of the educational authorities when there is a procedurally proper IEP in place. "We previously have cautioned that courts lack 'the specialized knowledge and experience' necessary to resolve 'persistent and difficult questions of educational policy.' Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for r:esolution by the states." Rowley, supra at 208 (citation omitted).

The benefit that an IEP provides must be more than minimal in order to be considered appropriate. "Clearly, Congress did not intend that a school system could discharge its duty under the [IDEA] by providing a program that produces some minimal academic advancement, no matter how trivial." Hall v. Vance County Bd. of Educ., 774 F.2d 629 (4th Cir. 1985).

In Mark's case, keeping him in a regular class for his academics does not provide him with instruction designed to confer educational benefit. That placement provided at best minimal benefit, which is legally insufficient.

Mark learns from one-to-one instruction and not from being in a class of twenty-one students. Mark does not learn the same matters as the other students his class and is simply monitoring the instructional program. See, DeVries v. Fairfax County School Board, 882 F.2d 876 (4th Cir. 1989). Mark becomes distracted by the students in the program and they in turn become distracted by him and many attendant staff who arrive to work with him. As a result, it is extremely difficult for Mark to learn in a regular class.

The only items which Mark learned during his second grade year in a fully included class were those particular skills which were taught to him one-on-one in a segregated setting. 19 The evidence has shown that when the use of facilitated communication is discounted, Mark is functioning at the same place he was before he began three years of an included program. His current functioning is at a pre-kindergarten level of instruction. The injustice to Mark from continued placement in the inappropriate regular class must immediately be corrected by placing him in a program where he can learn.

The parents will argue that Loudoun's program would have benefited Mark if only the inclusion program had been properly implemented. This argument is incorrect. As was discussed above, the team that was in place within the Loudoun County Public Schools had expertise in autism and was trained in inclusion and in facilitation. Person by person, Loudoun can match the competence of its staff with the staff in Illinois. The concentrated expertise of the Loudoun staff and the extensive amount of time that they devoted to making the program work did not enable the program to succeed for Mark.

One cannot ignore the fact that the sole basis for determining that Mark made any educational achievement while in an inclusion setting is based on the use of a inherently invalid technique known as facilitation. There were sound educational reasons articulated by the experts as to why facilitation should not be utilized with any students. In Mark's case, however, facilitation has been attempted and has not been found to be reliable. Furthermore, the choice of educational techniques, of which facilitated communication would be one, is the school division's choice.

We believe that a congressional mandate that dictates the substance of educational programs, policies and methods would deprive school officials of the flexibility so important to their tasks. Ultimately, the Act mandates an education for each handicapped child that is responsive to his or her needs, but leaves the Substance and the details of the education to state and local officials.

See Barnett v. Fairfax county School Board, 927 F.2d 146, 152 (4th Cir. 1991). As a result, parents cannot mandate the use of facilitation. In Mark's case, it should not be utilized because facilitation masks his true functioning level and will only serve to frustrate him. Most significantly, use of facilitation will prevent Mark from actually learning as his work will be judged not by what he can do but by what the facilitator can do.

The inclusion which the Hartmanns seek is a recent phenomenon. Mainstreaming is not new but the idea that every student should be accommodated in regular education is itself a new and controversial method of instruction: 'rr:' IV, 90. The U.S. Department of Education, however, correctly noted in its comments on inclusion that n[t)he decision as to what placement will provide a free appropriate public education for an individual child, including a determination as to the LRE in which appropriate services can be made available to the child, must be made on an individual basis." Letter to Johns, 21 IDELR571, 572 (USDOE 1994).

 

B. The Legal Standard for Inclusion in Virginia.

The standard by which inclusion cases are judged in Virginia is set forth in DeVries v. Fairfax County School Board, supra. 20 In DeVries, the Court considered a case in which an autistic student's parent desired for him to be placed in a regular education classroom. The Fairfax County School Board ("Fairfax") contended, however, that the autistic child should receive special education services at a separate vocational center located within another regular education school.

In that location, the autistic child would obtain the special education services that he needed to derive educational benefit as well as having interaction with his non-handicapped peers. The United States Court of Appeals for the Fourth Circuit determined that this autistic child would not receive an appropriate public education in the regular education classroom placement proposed by the parents, even with the use of supplementary aides and services. The child's educational needs dictated that special education services be provided.

The DeVries Court recognized the congressional preference for mainstreaming, when appropriate, and stated "[M)ainstreaming is not appropriate for every handicapped child." Devries at 878. The Court stated that in making the determination of whether to place a child in a regular education classroom, the Court must accord:

the proper respect for the strong preference in favor of mainstreaming while still realizing the possibility that some handi­ capped children simply must be educated in segregated facilities either because the handicapped child would not benefit from mainstreaming, because any marginal benefits received from mainstreaming are far out­ weighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, or because the handicapped child is a disruptive force in the non-segregated setting.

Devries at 879 (quoting Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.) (citation omitted), cert. denied, 464 U.S. 864 (1983) . The DeVries Court held that the autistic child would not receive an appropriate education in the regular classroom because he "would simply be monitoring classes" with regular education students and "his disability would make it difficult for him to bridge the 'disparity in cognitive levels' between him and the other students, he would glean little from the lectures, and his individualized work would be at a much lower level than his classmates." DeVries at 879-80.

As the discussion above reveals, Mark does not benefit from total mainstreaming or inclusion. His attention span is too short; his academic functioning is too low; his requirement for supplemental aids and services is overwhelming; his disruptions and behaviors are frequent; he requires one-to-one instruction; the other students' education is hampered by his presence; he does not model his peers; and he does not learn in a regular class. Mark's educational needs cannot feasibly be met in a regular class. He requires the more intensive, structured program at Leesburg Elementary School. Thus, applying the Devries standard for inclusion to Mark's case dictates a placement a Leesburg.

 

C. Rulings in Other Circuits.

Other Circuits have examined the tension between the requirement of an appropriate individualized education for each handicapped student and the desire for mainstreaming in the Individuals with Disabilities Education Act ("IDEA"). Daniel R.R. v.· state Board of Education, 874 F.2d 1036 (5th Cir. 1989), is one such case decided by the united states Court of Appeals for the Fifth Circuit. In Daniel R.R., the Fifth Circuit developed that Court's standard for balancing the tension between an individualized appropriate education for each handicapped child and the preference for mainstreaming.The Court stated:

First, we ask whether education in the regular classroom, with the use of supplemental aides and services, can be achieved satisfactorily for a given child. See § 1412(5) (8). If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate. See id. Daniel R.R. at 1048.

The Fifth Circuit went on to hold that in making the first determination, the Court should consider: (i) whether education in the regular classroom can be achieved satisfactorily for that student, (ii) whether the child will receive educational benefit from regular education, and (iii) what effect the handicapped child's presence has on the regular classroom environment and on the other students in the regular education classroom. Id. at 1048-49.

The Fifth Circuit authorized a placement in a self-contained program with limited mainstreaming in appropriate cases:

the school must take intermediate steps where appropriate, such as . . . mainstreaming the child for nonacademic classes only, or providing interaction with non-handicapped children during lunch and recess. . . . If the school officials have provided the maximum appropriate exposure to non­ handicapped students, they have fulfilled their obligation under the [IDEA].

Id. at 1050. The IEP which has been proposed for Mark provides the correct blend of mainstreaming and special education instruction.

For Mark, education in the regular classroom 'cannot be achieved satisfactorily. Mark requires more supplemental aides and services than can feasibly be supplied. The Hartmanns argue that even more is required than is currently in place. As the Court expressly stated in Daniel R.R., the IDEA "does not require regular education instructors to devote all or most of their time to one handicapped child or to modify the regular education program beyond recognition." Daniel at 1048.

Mark does not benefit from his regular education placement. He remains on a pre-kindergarten level after three years of inclusion. It is not appropriate to place Mark in a class of twenty-one students when he learns one-on-one.

Another issue to consider is what effect Mark's presence will have on the regular classroom environment and the other students there. Mark's teachers have forcefully described the impact Mark's placement has on these students. 21 The constant disruptions from staff coming in and out and from the noises and the behaviors, hamper the students and limit their educational opportunities. One student cannot be permitted to limit the education of the remaining. Given Mark's significant misebehaviors and academic needs, this chose is not even a close one.

Obviously, the cost of the many services required to assist Mark in mainstreaming is burdensome to Loudoun and dictates against a regular education placement. See Statement of Facts, section (C) (7), supra.

 

D. Decisions By Other Courts.

Other courts have been reluctant to order inclusion of the magnitude demanded by Mark's parents finding that that level of regular classroom interaction is inappropriate for the student when it adversely affects the education of the other students and of the student who is the subject of the hearing. In MR by RR v. Lincolnwood Board of Education, 20 IDELR 1323 (N.D.lll. 1994), the court rejected the arguments advanced by the parents that an emotionally disturbed student required mainstreaming when it had been shown that " ... MR is not benefitting from interaction with other students at Golf and that he would benefit from being placed in a more structured program with additional support services." Id. at 1325. The court concluded that mainstreaming was inappropriate for a student who was not progressing, whose behaviors were deteriorating and whose presence was disruptive for the other students. This case reminds one of Mark's situation.

In yet another case, a district court in Arizona determined that a deaf student required placement in a residential school for the Deaf and Blind rather than in a regular public school as requested by the parents. See Poolaw by Poolaw v. Bishop, et al., 21 IDELR 1 (U.S.D.C. Ariz. 1994). The student in Poolaw had been primarily in regular education programs for several years. His teachers then "disagreed with Lionel's IEP and with his continued placement in the regular classroom. The teachers' felt that Lionel had not made sufficient progress, with language and vocabulary to master fourth grade material and that he needed in a specialized environment." Id. at 2.

The court concluded in a compelling statement that

the separate program without main­ streaming was required because nonacademic benefits of mainstreaming would be minimal in light of Lionel's comprehensive academic needs. Because of the significant delay in his language skills, Lionel would benefit little from the social and linguistic modeling that mainstreaming provides. Balanced against Lionel's compelling need to acquire language skills and to learn to read and write, these considerations do not require a contrary decision.

Lionel's situation is an urgent one. Lionel is a bright child who will never fulfill his potential and never become a self-sufficient adult unless he acquires a language base and learns to read and write. The IDEA requires that Parker provide Lionel with a free appropriate public education and the Court concludes that this obligation can only be met if Lionel is placed at A.S.D.B. Id.

Mark's situation is every bit as compelling as Lionel's. The insignificant benefits of social interaction in a regular class for a child who demonstrates no social awareness and no benefits from modeling of peers cannot overcome Mark's significant educational requirements to learn basic reading, writing and math skills.

 

IV.

CONCLUSION

For the foregoing reasons, Loudoun County Public Schools respectfully requests that the Hearing Officer determine that Mark Hartmann cannot receive an appropriate education in a full-time placement in regular education and that the IEP proposed by Loudoun County Public Schools for Leesburg Elementary School for the 1994-95 school year offers him a free appropriate public education.

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1 References to the transcripts of the five days of hearings will be designated sequentially by Roman numerals I through V followed by a page number. The Roman numerals will correspond to each consecutive day of the hearing.
2 References to the School Board Exhibits will be designated "SB" followed by an exhibit number.
3 The Hartmanns lived in williamsburg, Virginia at the time.
4 References to the Parents' Exhibits will be designated "PE" followed by an Exhibit number.
5 This issue will be discussed fully later.
6 As a third grader, Mark's academic deficits are more apparent and his need for appropriate academic services is greater.
7 No one who worked with Mark in Illinois in the first grade had prior experience with autistic students or inclusion. Tr. I, 199, 204, 214, 217-218; PE 19.
8 The team meetings for the full inclusion program in Montgomery County are held much less frequently, on a monthly basis. Tr. IV, 87.
9 This diagnosis was the one assigned to Mark at an early age. SB 5.
10 While there was much discussion about the Hartmann's perceived need for an inclusion coordinator, Mary Kearney and Frank Johnson fulfilled the role earlier and Ginny McCullough subsequently. Tr. I, 122; Tr. II, 111-112. There is no recognized specialty of inclusion coordinator. Tr. I, 153.
11 This trait has remained constant since Mark was enrolled in Butterfield Elementary. SB 18.
12 Initially a formal behavior plan was not deemed to be necessary based on the Hartmann's reports of good behavior. Tr. II, 138.
13 Mark used a communication board at PACES initially and to a limited extent in kindergarten in Illinois. SB 11, 15.
14 According to the testimony of Frank E. Johnson, 80% of all students with autism fall within the mentally deficient range of cognitive functioning. Tr. II, 252.
15 There are only ten students with autism in the Loudoun county Public Schools out of 18,000 students. Autism is a low incidence handicapping condition. Tr. II, 241-242, 244.
16 After learning that the Illinois educators removed Mark from the classroom every afternoon to teach him one-on-one in math and removed him other times when he was disruptive, one wonders how truly different Loudoun's proposed placement at Leesburg Elementary School is from the actual implementation of Mark's education program in Illinois.
17 Even Ms. Truax, the Illinois principal, appeared to waiver on whether inclusion was appropriate presently. She testified she would start Mark "in the third grade program being very clear with the parents, we'll go back, we'll talk, we'll keep analyzing this, we'll see where we are, but we would start him certainly in the third grade inclusive program." Tr. I, 193.
18 Kenna Colley's notion that all students with disabilities should be placed in regular education is contrary to IDEA which requires placements based on individual needs and not on some theory of categorical placement. Tr. IV, 88.
19 One matter which Mark was able to learn in a segregated setting was use of a communication board.
20 An abbreviated form of the School Board's pre-trial brief is incorporated here, The hearing officer is referred to the pre-trial brief for a more exhaustive treatment of the cases.
21 Again, Loudoun's concerns relate to Mark as well as these students. Mark suffers in the improper placement.