The Hearing in the above captioned matter was held on April 14, 1998 at the Law Offices of Franczek Sullivan P.C., 300 South Wacker Drive, Suite 3400, Chicago, Illinois, before Robert F. Ladenson serving as Level II Hearing Officer by selection of the parties and appointment by the Illinois State Board of Education.

The case for the School District was presented by Mr. John Relias of the law firm of Franczek Sullivan P.C., 300 South Wacker Drive, Suite 3400, and Chicago, Illinois. The case for the parents was presented by Ms. Mickey Moran of the Family Law Center of the North Chore, 650 Vernon, Glenco, IL.

At the Hearing the parties presented oral argument. Neither party chose to call witnesses.
 

Background

The Student's program utilizes this method intensively over a broad range of areas, such as the development of cognitive skills, receptive and expressive language, self-help, and social interaction (Tr., 9/19/97, pp. 200-02). The discrete trial teaching of the Student proceeds in sequences of a few minutes followed immediately by a few minutes of break time, in which the Student can play. Even during the break times, however, the Student's therapists work with him in developing social skills, such as turn taking, and on eliciting spontaneous linguistic communication (Tr. 9/19/97, p. 209).

The Student's mother directs and coordinates his program, which is administered by herself, along with several therapists, who assist her in carrying out the DTT instruction of the Student. The Student's mother directs the program with consultative assistance from

a clinical psychologist who the Student's mother contacted in the first few months of 1997 to help her set up the program. The Parent's consulting psychologist received training at UCLA from Dr. Ivor Lovaas, an eminent figure and pioneer researcher in the area of Applied Behavioral Analysis programs for children with autism ((Tr., 9/19/97, p.123, p.145; Tr., 10/21/97, p. 5)

The Student has made significant educational gains in his home bound program, especially in the areas of cognitive skills and speech and language development (Tr., 9/19197, pp. 200-201, p 285; Tr., 10/20/97, p. 33, p. 174). As of the fall of 1997 he had begun the first phase of work on social interaction (Tr., 9/19/97, p. 210), which is very important for the Student, because, as of that time, he could only tolerate the most simple kinds of social environments, with few individuals present, and only a single simple activity taking place (Tr., 10/21/97 pp. 23-24, 5l-52, 101). The Parents' consulting psychologist believes that, under the most optimistic scenario, the Student will have progressed sufficiently by the fall of 1998 to begin a nursery school program with the assistance of a one on one aide (Tr., 10/21/97, p. 66). In any event, the Student's home based program is designed to provide him with the necessary knowledge and skills for a successful transition, at some time in the next several years, to a regular education environment(Tr., 9/19197, p. 203, Tr., 10/21/97 pp. 58-61).

On April 21 of 1997 an MDC/IEP meeting was convened by Palatine Community Consolidated School District 15 (hereinafter, the School District) to determine the Student's eligibility for special education services, and to develop an appropriate program for him. The School District recommended placement for the Student in a cross-categorical classroom for 10 hours per week (2.5 hours per day, four days a week).

Included within the proposed ten hour per week program were related services of speech and language therapy for 90 minutes per week, occupational therapy for 60 minutes per week, and social work for 60 minutes per week. On April 28, 1997 the Parents filed a request for a Level I Due Process Hearing. On August 21, 1997, the School District, through its attorney, proposed doubling the total number of hours in the program the School District had proposed for the Student. The proposal conveyed by the School District's attorney, however, contained no specifics concerning how the additional hours would be used in the Student's educational program.

A Level I Due Process Hearing took place on September 18, September 19, October 20, and October 21, 1997. In her Decision the Level 1 Hearing Officer found that "[t]he preponderance of the evidence establishes that the School District's proposed IEP of April 21, 1997 did not provide . . . [the Student] . . . with a free appropriate public education (FAPE) in the least restrictive environment (Decision of Level I Hearing Officer, p. 9). She also found that the School District's offer to double the number of hours in the program proposed for the Student did not remedy the deficiencies in the April 21, 1997 IEP. In addition, she found that the Parents' home based program was appropriate for the Student, and accordingly, ordered, the School District to reimburse the Parents for their expenses in connection with the program

On January 8, 1998, The School District requested a Level II Appeal of the Decision of the Level I Hearing Officer.

Position of the School District

The School District requests that the Decision of the Level I Hearing Officer be reversed in its entirety. Contrary to that Decision, the School District contends that its initial placement decision at the MDC/IEP meeting of April 21, 1997, of a four day per week, two and a half-hour per day program for the Student, was clearly appropriate. Its proposal of August 21, 1997, to double the number of hours per week in the Student's program, says the School District, is even more clearly appropriate. In this connection, the School District points to the two prong test enunciated by the U.S. Supreme Court in the case of Board of Education of the Hendrik Hudson Central School District v. Rowley 458 U.S. 176 (1982) as the relevant standard for determining the appropriateness of an educational placement under the Individuals With Disabilities Education Act (IDEA). According to this standard, a school district must (1) follow the procedures set forth in the IDEA, and (2) develop an IEP, under those procedures, reasonably calculated to enable the child to receive educational benefit.

The School District underscores that the second prong of the Rowley test does not require either that it develop and implement an optimal program for the Student, or that its program maximize the Student's potential commensurate with the opportunities afforded students without disabilities. Instead, the School District emphasizes, under the second prong of the Rowley test; it need only meet the far less stringent standard of providing an educational program reasonably calculated to benefit the Student.

According to the School District, if one keeps the second prong of the Rowley test clearly in mind, it becomes evident that in this case the School District has fully met its responsibility, under the IDEA, to provide an appropriate program for the Student. The School District notes, in this regard, that the Student's IEP contains goals and objectives that the Parents' own witnesses acknowledged as appropriate for the Student. To achieve these goals and objectives the School District points to the total time of twenty-five hours per week that the Student would spend in school under the program proposed in the IEP, as augmented by the School District's offer of August 21, 1997. During this time, says the School District, the Student would receive 180 minutes per week of speech and language services, and 120 minutes per week each of social work and occupational therapy services. The School District notes further that the Student's program would have a morning and an afternoon component. The morning program, according to the School District, in which two aides assist the teacher, has eight children on Monday and Wednesday, and twelve children on Tuesday and Thursday. The afternoon program that the Student could attend, says the School District, has only five children in it, and one teacher's aide.

Furthermore, according to the School District, both the Student's classroom teacher and the speech and language pathologist who would work with the Student, are certified in their respective areas of specialization. They each have prior experience working with autistic children, as do also the occupational therapist and social worker who would be involved in the Student" program, says the School District. All of these professionals, the School District asserts, utilize a flexible, pragmatic teaching approach that would involve continuous observation and analysis of the Students educational needs, with corresponding adaptations in his program as needed.

The School District contends that its program is reasonably calculated to provide educational benefit for the Student. In this connection, the School District notes that for a period of six weeks in January and February of 1997 the Student attended the School District's early intervention playgroup, accompanied by his mother. School District personnel involved in conducting the playgroup, the School District points out, all observed that the Student made educational gains by the time the playgroup came to an end in February of 1997. Since the Student benefited educationally from the early intervention playgroup, argues the School District, the placement called for in his April 21, 1997 IEP, augmented by the School District's offer of August 21, 1997, which would be far more intensive that the early intervention playgroup, thus complies with the second prong of the Rowley test.

In the opinion of the School District, the Level I Hearing Officer based her decision upon numerous mistaken conclusions and inferences with respect to the record in this case. The School District objects, in this regard, to the Level I Hearing Officer's conclusion that the School District's proposed program for the Student has no basis in a clearly articulated educational methodology. To the contrary, notes the School District, the classroom teacher in the program proposed for the Student testified at the Level I Hearing that she educates autistic children by using the discrete trial format, but in a natural classroom setting in order to increase the likelihood of generalization by students. In addition, the School District responds to the Level I Hearing Officer's statement that "no mention of a classroom aide" was made at the MDC/IEP meeting of April 21, 1997 by

pointing to testimony at the Level I Hearing that indicated the presence of two aides in the morning component of the program proposed for the Student, and one aide in the afternoon component.

The School District also objects that the Level I Hearing Officer erroneously characterized the School District's proposal as deficient in not providing for direct one on one instruction. To counter this characterization, the School District calls attention to the testimony of School District personnel at the Level I Hearing that the nature and extent of one on one instruction for the Student would be determined by a process of continuous observation and analysis of the Student's classroom needs. The School District also points, in this connection, to seven hours per week of "dedicated related services with certified personnel in [the Student's] full day program."

Furthermore, the School District objects to the Level I Hearing Officer's conclusion that the Student "could not reasonably benefit from group instruction because he would "withdraw from interaction with both children and adults." This conclusion, says the School District, fails to consider adequately the testimony at the Level I Hearing of all the School District personnel involved in the student's early intervention playgroup to the effect that the Student benefited from the playgroup, which took place in a classroom setting. As a related point, the School District challenges the statement cited by the Level I Hearing Officer in her Decision that "ABA therapy has been recognized as the only method with any real success in the remediation of autistic symptoms." In this regard, the School District notes a number of review articles surveying empirical research about education of autistic children that draw a less sweeping conclusion. The studies cited by the School District conclude that although ABA therapy appears to have had successful

results for many children, its clear superiority over all other methods has yet to be established.

In regard to the Student's IEP, the School District objects to the Level I Hearing Officer's conclusions that it failed to specify percentage target levels of accomplishment in regard to the Student's goals, did not include a behavior management plan, and did not provide for an extended school year. The School District contends that, with respect to these conclusions, the Level I Hearing Officer overlooked relevant testimony of School District personnel at the Level I Hearing concerning the School District's procedures in developing IEPs for students. Specifically, the School District calls attention to testimony of School District personnel to the effect that, consistent with past practice of the School District, the preceding matters were deferred for discussion at a follow-up meeting to take place thirty days after the MDC/IEP meeting of April 21, 1997. The School District notes that such a procedure is specifically allowed by State regulations.

The School District contends that the Level I Hearing Officer's finding of procedural violations on the part of the School District is erroneous. In response to the Level I Hearing Officer's finding that the School District failed to allow for the Parents to be equal partners in formulating the IEP of April 21, 1997, the School District contends that the Student's mother testified at the Level I Hearing that she had input in regard to specifying the Student's goals and objectives. In regard to the testimony of the Parent's consulting psychologist that she was not given adequate time to describe the Student's home bound program, the School District responds that it had no obligation, under the IDEA, to provide her with an unlimited opportunity to speak at the MDC/IEP meeting. Furthermore, says the School District, in regard to the Level I Hearing Officer's finding

that the School District did not discuss the amounts of time for related services with the Parents, even if true, this error was harmless, insofar as the amounts of time the Level I Hearing Officer ordered correspond to those specified in the Student's IEP. With respect to the Level I Hearing Officer's finding that the School District failed to consider the program advanced by the Parent as an option, the School District responds that it would have violated federal and state law to have done so. In this regard, the School District argues that having determined that appropriateness of its own proposed program for the Student, it thereby became evident that the Parents' program, which takes place in the home, rather than at school, is a more restrictive, and thus inappropriate placement.

The School District contends that the ruling of the U.S. Supreme Court in School Committee of Town of Burlington Mass. v. Dept. of Education of Mass. 471 U.S. 359 (1985), which delineated the conditions for Parents to be entitled to reimbursement for a unilateral placement, does not apply to the Parents' unilateral placement decision in this case. Under the Court's ruling in Burlington, notes the School District, Parents are entitled to reimbursement for a unilateral placement only under the following conditions: (1) the School District's placement is inappropriate; (2) the Parents' placement is appropriate. With respect to condition (l), the School District maintains that it presented testimony and evidence at the Level I Hearing that established the appropriateness of its placement for the Student. Furthermore, in this connection, the School District contends that all of the testimony of the Parents' expert witnesses, introduced to establish the contrary, presupposed a legally incorrect standard. In order to establish that the School District's proposed placement is inappropriate, argues the School District, the Parent's witnesses would have had to present credible testimony depicting that placement as so

deficient that one could not, in all fairness, consider it reasonably calculated to provide any educational benefit for the Student. The testimony of the Parents' expert witnesses, the School District contends, did not address this issue, but instead focused upon a legally irrelevant question, in the opinion of the School District, specifically, whether the Student currently receives more educational benefit in his home based program than he would in the School District's proposed program.

Furthermore, the School District asserts, the critical issue in this case concerning the appropriateness of its proposed placement for the student involves a disagreement over educational methodology between the Parents and the School District. For this reason as well, says the School District, the Parents are not entitled to reimbursement. In this regard, the School District points to the decision of the U.S. Court of Appeals for the Seventh Circuit in Lachman v. Illinois State Board of Education 852 F.2d 290 (1988), which holds that, under the IDEA, a School District has the primary responsibility for "choosing the educational method most suitable to the child's needs" (Lachman at 296).

In regard to the second Burlington requirement - that the Parents' unilateral placement is appropriate - the School District maintains this is not the case with respect to the Parents' home bound program for the Student. The School District asserts that the program is both rigid and inflexible, involves more hours of one on one instruction than necessary for the Student, contains no written behavior management plan, and utilizes therapists with insufficient expertise. The School District also contends that the program does not fit the Student's needs in virtue of employing an educational method that was intended for application in the case of students with IQs below that of the Student. Furthermore, the School District notes the testimony of the Parents' consulting

psychologist, in regard to the Student's home based program, stating that, in her opinion, the Student needs training in social skills. Such training says the School District should take place in a program at school rather than at home.

The School District notes that apart from the issue of whether a unilateral placement satisfies the two requirements set forth in Burlington, Parents nonetheless, fail to qualify for reimbursement on equitable grounds, because the record in this case is "bereft of any attempt [on the part of the Parents] to achieve a negotiated compromise and agreement on a private placement" Town of Burlington v. Department of Education for the Commonwealth of Massachusetts, 736 F.2d 773, 799 1st Cir. 1984); approved. Burlington School Committee v. Department of Education for the Commonwealth of Massachusetts 471 U.S. 359 (1985). In this case, says the School District, the Parents made up their minds to proceed with a home bound program of instruction for the Student in January of 1997, and put their program in place on March 10, 1997. By April 21, 1997, the date of the MDC/IEP meeting, the Parents were so strongly committed to their program, says the School District, that they would not even consider the School District's proposed program for the Student in a cross categorical classroom. For this reason, the School District argues that the Parents failed to show the type of cooperation requiring reimbursement from the School District under Burlington.

The School District argues that in the event the Level II Hearing Officer rules in favor of the Parents, he should, nonetheless, modify the order of the Level I Hearing Officer that requires the School District to pay for 38 hours per week of one on one instruction. In this regard, the School District points to the testimony at the Level I Hearing of several of the Parents' expert witnesses concerning studies that indicated substantial gains for some

autistic children in ABA programs involving 20-25 hours per week of one on one instruction per week (Tr. 9/19197, pp. 134-36; Tr. P. Ex 2, p. 2). The School District requests accordingly that the Level II Hearing Officer set The School District's obligation at payment for a program of 20 hours per week of one on one instruction for the Student, in the event that he (the Level II hearing Officer) upholds the position of the Parents.

The School District also contends that the order of the Level I Hearing Officer requiring the School District to pay for an extended school year program for the Student of up to 52 weeks, with reasonable allowance for School and Parent vacations, was excessive and vague. The School District thus requests the Level II Hearing Of Officer to reduce the total number of weeks per year in the Student's program, for which the School District must pay, in the event he rules in favor of the Parents. The School District objects to the order of the Level I Hearing Officer requiring the School District to reimburse the Parents for speech and language services, occupational therapy, and social work services at the cost charged to the Parents. Instead, the School District contends, in the event that the Level II Hearing Officer rules for the Parents, he should require reimbursement by the School District for the above services at the rate the School District would normally and customarily pay. The School District objects to the two and a half year period encompassed by the Level I Hearing Officer's order as inappropriate, pointing out that under federal regulations an IEP can only last one year. Finally, the School District maintains that the Level I Hearing Officer erred in ordering the School District to reimburse the Parents for five evaluations. Under federal regulations, the School District contends, the Parents are entitled, at most, to reimbursement for only one evaluation.

Position of the Parents

The Parents maintain that the Level II Hearing Officer should uphold the Decision of the Level I Hearing officer in its entirety. The Parents note, in this connection, that at the Level I Hearing they presented testimony of expert witnesses who all emphatically agreed that at this time the Student needs an educational program providing intense one on one instruction, employing DTT methodology. All of these witnesses, say the Parents, characterized the 38 to 40 hours of instruction per week in the Parents' home bound program as appropriate, and the 10 hours per week in the School District's proposed program as inappropriate in light of the Student's needs. The Parents note that their expert witnesses also agreed that the Student's educational needs could only be met at this time in a home bound program.

At the Level I Hearing, expert witnesses called by the Parents supported the claim that the student currently needs an intense educational program, with a high number of hours per week of one on one instruction, by pointing to theoretical notions about how human beings learn, and to the results of empirical research. Widely accepted theories of learning, said two of the Parents' experts, suggest that human beings acquire the greatest amount of basic information about the world, upon which most subsequent learning depends, during infancy and early childhood years. This implies, these expert witnesses both noted, that, other things being equal, the earlier an autistic child's educational program commences, and the more intense that program, the smaller the eventual gap between the child's educational success and that of other students (Tr. 9/19, 97, pp. 119

24; Tr. 10/20/97, p. 39). This theoretical conclusion, several of the Parents' experts testified, is borne out by empirical research studies that have confirmed immense disparities between rates of educational progress both for younger, as compared with older autistic children, and for children in high intensity programs, as compared with those in lower intensity programs (Tr. 9/19/97 p. 33, p. 38, pp. 119-24, pp. 132-36). The preceding points have special pertinence for the Student in this case, suggested two of the Parents' experts, because a placement for him in a regular education classroom, with appropriate supporting services, by the time he reaches kindergarten or the primary grades, is a realistic possibility, given the Student's rapid rate of success thus far in his home bound program (Tr. 10/21/97 pp. 58-61, 101-03).

In support of their conclusion that the intensive one on one program the student needs at this time should take place in his home, one of the Parents' experts noted that the home is the principal learning environment for all young children, rather than another place, such as a classroom (Tr. 9/19/97 p. 119). Furthermore, said several of the Parents' expert witnesses, their evaluations of the Student clearly indicate that in order for him to learn at a rate suitable for achieving his appropriate educational goals, the Student currently requires placement in a simple, distortion-free environment (Tr.10/21/97 pp. 23-24, 51-52, 101). The Parents' home fits this description much more closely than a classroom placement in the School District, said the Parents' witnesses (Tr. 10/20/97 p. 41, p. 182; Tr. 10/21/97 pp. 23-24). As a separate, but related, point, the Student's mother testified that the Student could not tolerate the social environment of the early intervention playgroup, which only lasted for ninety minutes once a week (Tr. 9/18/97 pp. 205-08). To place the Student in the far more socially demanding environment of a cross

categorical classroom, for ten, or more, hours per week, say the Parents, would, in all likelihood, result in educational regression, rather than benefit, for the Student.

The Parents contend that the evidence and testimony presented by the School District at the Level I Hearing to establish the appropriateness of its placement for the student clearly fails to do so. The Parents note, in this regard, that the School District presented no expert witnesses to counter the testimony of the Parents' experts, or to provide other kinds of testimony in support of the School District's proposed program for the Student. The School District's case, say the Parents consists entirely of the following:

(1) At the Level I Hearing various School District personnel expressed the opinion that the School District's proposed placement for the Student is appropriate;

(2) The School District purported to infer, from statements of School District personnel about the Student's alleged progress in the early identification playgroup, that, in all likelihood, he will derive educational benefit from the School District's proposed program.

With respect to (1) above, the Parents contend that at the Level I Hearing, most of the School District personnel who testified in support of the appropriateness of the School District's program for the student had never met or evaluated him. Only a few of the School District's witnesses, the Parents note, had observed the Student in the early intervention playgroup, and none of them had read any of the reports of the Parents experts.

As for (2) above, the Parents strongly disagree that the Student derived any significant educational benefit from the early intervention playgroup. Every session of the playgroup, say the Parents, was an ordeal for both the Student and his mother. As noted above, according to the testimony of the Student's mother at the Level I Hearing, the Student

could not tolerate the social environment of the playgroup. He never interacted with the other children, and, almost always, required intervention by his mother, or a staff person, to keep him from leaving the classroom, say the Parents.

Furthermore, the Parents contend that the School District provided no evidence to document educational gains by the Student in the early intervention playgroup. Only six goals were written for the playgroup, note the Parents, and only two of the six called for implementation in the playgroup, rather than at home. The Parents point out that all six goals were written informally without any ways to measure outcome specified. The Parents characterize the testimony of School District personnel concerning educational gains made by the Student while in the playgroup as "vague recollections," rather than a comparison of the Student's abilities before and after the playgroup, using quantifiable data.

In addition, the Parents assert that the early intervention playgroup differed from the School District's proposed program in the crucial respect that the Playgroup, unlike the proposed program, involved continuous one on one contact between the Student and an adult. The Parents note, in this regard, that the Student's mother was present with him throughout every session of the Playgroup, and that a special education teacher, involved in the playgroup, testified at the Level I Hearing that she spent about forty five minutes of every playgroup session with the Student and his mother. In contrast, say the Parents, the School District's proposed program contains no specific provision for one on one instruction of the Student.

The Parents contend that the deficiencies in the program proposed for the Student by the School District at the MDC/IEP meeting of April 21, 1997 were not rectified by the

School District's offer, made on August 21, 1997, to double the number of hours per week in the Student's program from ten to twenty. In this regard, the Parents point to the testimony at the Level I Hearing of the Special Education Director of the School District, who stated that the purpose of the offer was to avoid litigation. The Parents also note the testimony of the School District's Early Childhood Administrator, who said that at the time of the offer the School District had not determined what the Student would do for the additional ten hours per week. In addition, the Parents point out that the School District initiated no communication with the Parents at the time of the offer on August 21, 1997 concerning how the Student's needs might have changed since the MDC/IEP meeting on April 21, 1997, in light of the progress he had made over the intervening four months in his home bound program. The School District's settlement offer, say the Parents, clearly did not result from an analysis of the Student's individual needs.

The Parents maintain that the manner in which the School District conducted the MDC/IEP meeting of April 21, 1997 had serious deficiencies in virtue of which the School District violated the Student's right to a free appropriate public education. In this regard, the Parents note, most of the goals and objectives indicated for the Student in the IEP lacked percentage targets for measuring success, there was no behavior management plan, and no provision was made for an extended school year.

Most significant, the Parents argue, the School District had clearly predetermined its proposal for placement of the Student at least three months before the MDC/IEP meeting on April 21, 1997. The School District concluded at that time, say the Parents, that it had only one placement available for the Student, and refused even to make a preliminary investigation concerning other possibilities. In this regard, the Parents note that although

the School District accepted the diagnosis of the Student's pediatrician as to the nature of his educational disability, the School District, nonetheless, refused to consider his recommendation to the Parents that they consider an intense ABA program for the Student. Furthermore, the Parents note that the School District did not consult with any specialists on autism in developing its program for the Student. The predetermined outcome of the MDC/IEP meeting of April 21, 1997, the Parents contend, is clearly exemplified by the School District's refusal to allow either the Student's mother or the Parents' consulting psychologist to provide an adequate description of the Student's home bound program at the meeting.

The Parents maintain that the evidence and testimony presented in connection with the Level I Hearing clearly established the appropriateness for the Student of the Parents' home bound placement. The Parents contend that persuasive testimony of their expert witnesses directly refutes the School District's characterizations of the Parents' program as not appropriately individualized for the Student, staffed by insufficiently trained therapists, and lacking a written behavior management plan. The School District's claim that the program provides more hours per week of one on one instruction than the Student needs rests upon selective, and out of context, quotation from the testimony of the Parents' expert witnesses, say the Parents. Furthermore, the School District's claim that the Student's measured IQ score places him above the appropriate level for his home bound program, in the judgment of the Parents, involves significant misconceptions about the Student's IQ scores, as well as about research results in regard to the effectiveness of ABA programs for children with autism. In this regard, the Parents assert that the School District's attribution of an IQ of 85 to the Student is highly misleading because the sole IQ

test taken by the Student only measures non-verbal intelligence. In addition, note the Parents, one of their expert witnesses testified that although IQ has been used as an outcome measure to evaluate ABA programs for autistic children, it is not a good predictor of success for such programs (Tr., 9/19/97 pp. 55-56). The Parents argue that for this reason one cannot reasonably attribute the Student's educational gains in his home bound program primarily to his natural intelligence, rather than to the program's effectiveness.

The Parents also strenuously disagree with the position of the School District that the Parent's home based program for the Student is more restrictive than the School District's proposed placement. The Parents note, in this connection, that for the vast majority of three to four year old children, whether autistic or not, most learning takes place at home, rather than in a school classroom. The Parents recognize that the Student must acquire the necessary skills for making a successful transition from the home to a classroom environment. The testimony of the Parents' expert witnesses, however, say the Parents, clearly established that at this time the Student's home is the most natural environment in which to provide the kind of education he needs to develop those skills.

The Parents disagree with the School District's characterization of the critical dispute in this case as a clash between conflicting viewpoints about educational methodology, such that, under the ruling of the U.S. Court of Appeals for the Seventh Circuit in Lachman v. Illinois State Board of Education 852 F.2d 290 (1988), the School District's viewpoint must prevail. In contrast, according to the Parents, the critical issue in this case concerns whether the School District's proposed program fails to provide a free appropriate public education because it is not reasonably calculated to provide the Student

with educational benefit. The Parents contend that the School District provided no evidence or testimony in connection with the Level I Hearing regarding the effectiveness of its proposed program for autistic children in general, or the Student in particular.

The Parents contest the School District's claim that they have failed to cooperate with the School District. To the contrary, say the Parents, they have continually sought to maintain open lines of communication between themselves and the School District. The Parents note, in this connection, however, that ultimately, the critical issue in this case is whether the evidence and testimony presented at the Level I Hearing supports their claim to reimbursement for the home bound program they have developed and implemented for the Student. The Parents assert that it clearly does so.

Finally, the Parents maintain that all of the relief ordered by the Level I Hearing Officer is appropriate, and that the Level II Hearing Officer should not in any way modify it.
 

Opinion

The dispute between the School District and the Parents in this case raises the following two critical questions. First, has the School District proposed an appropriate placement for the Student? Second, if not, then is the home based program provided for the Student by the Parents appropriate, thereby entitling the Parents to reimbursement from the School District for their expenses in connection with the program? As the standard for reaching a determination with respect to the first of the above two issues, both the School District and the Parents point to the two part test set out by the United States Supreme Court in Board of Education of the Hendrik Hudson Central School

District v. Rowley 458 U.S. 176 (1982). The first part of the Rowley test concerns whether a school district has complied with the procedural requirements of the IDEA. The second part involves an inquiry as to whether the child's IEP is "reasonably calculated to enable the child to receive educational benefit" (Rowley at 206-07).

In her decision, the Level I Hearing Officer found that the School District's IEP "failed the . . . first prong of the Rowley test because the Parents and their representatives were not equal partners in formulating the IEP' (Decision of the Level I Hearing Officer, p. 26). In this regard, the Level I Hearing Officer cited testimony both of the Student's mother and the Parents' consulting psychologist to the effect that they were not permitted to describe or discuss the program in depth at the MDC/IEP meeting of April 21, 1997. The School District responds that it had no obligation to provide the Students' mother and the Parents' consulting psychologist with unlimited opportunities to speak at the MDC/IEP meeting.

It appears to the Level II Hearing Officer, based upon his review of the testimony presented at the Level I Hearing, that the Student's mother, and the Parents' consulting psychologist, each received an amount of time to discuss the Parents' home bound program for the Student that the Level II Hearing Officer would describe as quite brief. The School District accounts for this by explaining that the School District personnel at the MDC/IEP meeting had determined the Parents' home bound placement to be more restrictive than the School District's proposed placement for the Student.

The Level II Hearing Officer believes that in deciding whether the School District violated the Parents' right to treatment as equal partners at the MDC/IEP meeting, the critical issue before him does not concern his agreement or disagreement with the above

contention of the School District. The key question instead, in the opinion of the Level II Hearing Officer, is whether the School District's placement resulted from an effort in good faith to develop an appropriate program for the Student consistently with procedural requirements of federal and state law designed to assure parental involvement in the MDC/IEP process. Based upon his review of the evidence and testimony presented in this case, the Level II Hearing Of Officer cannot say that the School District failed to make such a good faith effort. For this reason, the Level II Hearing Officer concludes that the School District satisfied the first prong of the Rowley test. Whether or not the School District succeeded in its effort to develop an appropriate program for the Student in this case, however, raises other issues, to be discussed immediately below, that bring the second prong of the Rowley test into play.

In her decision, the Level I Hearing Officer found the School District's IEP "substantively inadequate" in virtue of failure to specify appropriate target percentage levels of mastery for the Student's goals and objectives, not incorporating a behavior management plan, and not providing an extended school year for the Student (Decision of the Level I Hearing Officer, pp. 21-23). The School District responds that it intended at the time of the April 21, 1997 MDC/IEP meeting to reconvene in thirty days to revise the Student's IEP so that it would address all of the above matters. Such an approach, the School District argues, is allowed by 23 Illinois Administrative Code 226.560 which states that "[t]he meeting at which a child's IEP is developed must be held within thirty (30) days of determination that the child is eligible for special education and related services."

The Level II Hearing Officer agrees with the School District that the procedure it intended to follow, of convening a follow up meeting within thirty days of the MDC/IEP

meeting on April 21, 1997, complies with the above cited State regulation. In the opinion of the Level II Hearing Officer, however, the following critical issue remains in regard to whether the program proposed by the School District for the Student satisfies the second prong of the Rowley test. Is this program reasonably calculated to provide the Student with educational benefit, on the assumption it is revised, within the time frame specified in State Regulations, to include appropriate percentage target levels for mastery of the Student's goals and objectives, a behavior management plan, and provision of an extended school year for the Student?

The School District correctly differentiates the above question from that of whether its proposed program provides optimal benefit for the Student, stressing that the second prong of the Rowley test places no requirement upon it to provide the Student with a maximally beneficial program. In Rowley the Supreme Court explicitly declined to say in exact terms what educational benefit means in a case such as this one, where both the program provided for the Student by the Parents, and the program proposed for him by the School District, call for education outside of the regular classroom (Rowley at 202). Nonetheless, the Court made clear that in such cases a School District's obligation to provide a free appropriate public education does not require it to develop and implement an optimal program (Rowley at pp. 203-04).

The Level II Hearing Officer thus recognizes that the second prong of the Rowley test places significant substantive limitations upon the right of students with educational disabilities to a free appropriate public education under the IDEA, and, correlatively, upon the obligation of school districts to provide such programs. Regardless of how one understands these limitations, however, the Level II Hearing Officer also believes that, in

the context of a due process hearing, a school district has the burden of proving by a preponderance of the evidence that it has met its obligation under the second prong of the Rowley test.

In the opinion of the Level II Hearing Officer, the reasoning of the Supreme Court in Rowley provides strong support for the notion that in a due process hearing a school district has the burden of proving by a preponderance of the evidence that it has proposed an appropriate placement for the student. In this regard, upon analyzing the legislative history of the IDEA (then the EAHCA), the Court described the essential purpose of the Act as opening the doors of public education for millions of children with educational disabilities (Rowley at 192). The Court also concluded, however, that Congress had not intended for the IDEA to accomplish this purpose by mandating a specific level of educational benefit to which all children with educational disabilities would be entitled. (Rowley at 192). Instead, the Court understood Congress to have intended that the IDEA's "elaborate and highly specific procedural safeguards" would serve as the principal means both of opening the doors of public education for children with educational disabilities, and of keeping them open (Rowley at pp. 205-06).

This essential purpose of the procedural requirements of the IDEA, the Level II Hearing Officer believes, is clearly served by placing the burden of proof upon a school district, in connection with a due process hearing, to establish by a preponderance of the evidence that the placement it proposes for a student is appropriate. In this regard, the Level II Hearing Officer calls attention to the relatively limited nature of the School District's obligation to provide an appropriate placement, under the second prong of the Rowley test, as well as to the frequently immense difference in expertise about educational

matters between school districts and parents. In the opinion of the Level II Hearing Officer, placing the burden of proof upon Parents in a due process hearing to establish the inappropriateness of the school district's placement proposal would tend to close the doors of public education for students with educational disabilities rather than to open them. This would be especially so, the Level II Hearing Officer believes, in many cases for children whose parents have limited educational backgrounds or incomes.

In regard to the bearing of State statutes upon the issues of a school district's requisite burden and quantum of proof in a due process hearing, the Level II Hearing Officer notes the following language contained in The School Code of Illinois, which states that at a due process hearing:

. . . [t]he school district shall present evidence that the special education needs of the child have been appropriately identified and that the special education programs and related services proposed to meet the needs of the child are adequate, appropriate (underline added for emphasis), and available. (105 ILCS 14-8.02a(g)).

The preceding statutory language, the Level II Hearing Officer observes, requires a school district to present evidence that the special education program it has proposed to meet the needs of a child is appropriate. Such a requirement would have no point, the Level II Hearing Officer believes, unless understood to place upon a school district the burden of proving by at least a preponderance of the evidence that the program is appropriate for the child.

The Level II Hearing Officer thus concludes that under both federal and State law, in the context of a due process hearing, a school district has the burden of proving by a preponderance of the evidence that the placement it has proposed for a student is appropriate.

Under the second prong of the Rowley test, an appropriate proposed placement for a student must be reasonably calculated to provide him or her with educational benefit. For this reason, the Level II Hearing Officer notes, one needs to ask what the phrase 'educational benefit' means in regard to the specific circumstances of the Student in this case. To answer this question, the Level II Hearing Officer begins by calling attention to the goals and objectives in the Student's IEP of April 21, 1997. It appears to the Level II Hearing Officer that the Parents and the School District agree on the general appropriateness of these goals and objectives for the Student. That is to say, they appear to agree that the Student is capable of learning in regard to all the areas over which the goals and objectives range, specifically, cognitive skills compliance and cooperation, social interaction, receptive language, expressive language, oral motor skills, fine motor skills, and self help (April 21, 1997 IEP, included in School District Documents for Level I Hearing, pp. 26-39). Furthermore, the Level II Hearing Officer notes the opinion expressed by the Parents' consulting psychologist, as well as by other expert witnesses who testified on behalf of the Parents, that, in light of the Student's capabilities, placement of the student in a regular education kindergarten and/or primary grades classroom, although in no way certain, is nonetheless a realistic possibility (Tr., 10/21/97, p. 21, pp. 102-03).

Upon considering the goals and objectives contained in the Student's IEP, the preceding assessment of the Student's prospects for integration into the regular education environment, and the strongly expressed preference for such integration underlying the IDEA, the Level II Hearing Officer concludes the following in regard to what 'educational benefit' means for the student in this case. At this time, in the opinion of the Level II

Hearing Officer, educational benefit for this Student means progress in the areas of the goals and objectives contained in his IEP, at a rate enabling him to make a successful transition to a regular education kindergarten and/or primary grades classroom.

The preceding conception of educational benefit for the Student in this case is based upon uncontested information in the case record concerning the Student's needs and capabilities, as well as upon the Level II Hearing Officer's understanding of the preference, underlying the IDEA, for integration of Students with educational disabilities into the regular education environment. Under this conception, the Level II Hearing Officer notes, educational benefit for the Student, in the context of this case, involves a successful, but not necessarily either the most successful or the most rapid possible integration of the Student into a regular education environment. The Level II Hearing Officer thus regards the conception as consistent with the second prong of the Rowley test.

Based upon the preceding analysis, the Level II Hearing Officer regards the following issue as critical in this case. Is the School District's proposed placement for the Student reasonably calculated to provide educational benefit for him, under the conception of educational benefit explicated above as relevant with respect to the Student in this case? In the opinion of the Level II Hearing Officer, under federal and State law, the burden of proving an affirmative answer to the preceding question, by a preponderance of the evidence, falls upon the School District. The Level II Hearing Officer believes, for reasons to be explained immediately below, that the School District has not met this burden through the evidence and testimony it presented in connection with the Level I Hearing.

The Parents presented detailed and extensive testimony of expert witnesses at the Level I Hearing, who agreed that, at this time, the program proposed for the Student by the School District cannot address his needs, and will not provide educational benefit for him. In this connection, the Level II Hearing Officer cannot agree with the School District that the testimony of all the Parents' expert witnesses assumed a legally incorrect standard for assessing educational benefit in regard to the Student, and is therefore irrelevant to the principal issues in this case. To the contrary, in the opinion of the Level II Hearing Officer, the Parents' expert witnesses agreed on the following points, which the Level II Hearing Officer views as highly relevant to the issue of whether the School District's proposed program for the Student is appropriate.

Human beings, say the Parents' experts, acquire the greatest amount of basic information about the world, upon which most subsequent learning depends, during infancy and early childhood. This suggests, according to the Parents' experts, that, other things being equal, the earlier an autistic child's educational program commences, and the more intense that program, the smaller the eventual gap between the child's educational success and that of other students. The Parents' experts all agreed that the preceding theoretical conclusion has been confirmed by numerous empirical research studies that report immense disparities between rates of educational progress both for younger, as compared with older autistic children, and for children in high intensity programs, as compared with low intensity programs.

In addition, the Parents' experts all agreed that at this time the Student cannot benefit from a cross categorical program in a school classroom. In this regard, they maintained that the Student needs one on one instruction at a level of intensity far beyond what a

classroom placement can provide, even a classroom such as the School District's proposed placement, with a small number of students, and one, or even two, teacher's aides. The Parents' experts also said that currently the Student can only learn, at an educationally beneficial rate of progress, in a simple and distraction free setting. In this connection, all of the Parents' expert witnesses stressed that the social aspect of a classroom environment would be especially disturbing for the Student, and, in all likelihood, result in significant regression for him. Finally, the Parents' experts agreed that the School District's settlement offer, to increase the number of hours per week in the program proposed for the Student, would not, by itself, address their concerns about the program.

The Level II Hearing Officer cannot say that, in his judgment, the testimony of the Parents' expert witnesses established the preceding points in his mind beyond a shadow of a doubt. He views their testimony as highly credible, however, especially in light of the absence of any expert testimony to the contrary offered by the School District. The School District's witnesses at the Level I Hearing were various School District personnel who described the program proposed for the Student, and who expressed the opinion that the program is appropriate for him. The Level II Hearing Officer, however, shares the sense of puzzlement that the Level I Hearing Officer expressed in her Decision concerning the bases upon which the School District witnesses arrived at their respective opinions in this regard. As noted by the Level I Hearing Officer, most of these witnesses testified that at the time of the April 21, 1997 MDC/IEP meeting they had only minimal information about the Student's then current levels of functioning and needs. Many of them testified that they had limited background and experience educating autistic children. None of the

School District's witnesses discussed in depth how, in their respective opinions, particular features of the program proposed for the Student could address his specific needs in an educationally beneficial way. Nor did any of the School District's witnesses testify concerning positive results achieved by the School District's program, or similar programs elsewhere, with regard to children whose diagnostic profiles resemble those of the Student in this case.

The School District has presented the following argument to establish the appropriateness of its proposed placement for the Student. First, the School District notes the testimony of School District personnel involved in the Student's early intervention playgroup to the effect that he benefited from having been in it. The School District then makes the point that the placement it has proposed for the Student would be much more intensive than the playgroup (20-25 hours per week per semester, compared with 1.5 hours per week for six weeks). The School District thus concludes that its proposed placement for the Student qualifies as reasonably calculated to provide him with educational benefit.

The preceding argument does not persuade the Level II Hearing Officer. To begin, although the Level II Hearing Officer acknowledges the possibility that the Student derived benefit from the early intervention playgroup, he (the Level II Hearing Officer) also notes the testimony at the Level I Hearing of the Student's mother to the contrary. Given this conflict of testimony, the Level II Hearing Officer concludes that to resolve the issue he would need at least some additional evidence in the form of objective data concerning the Student's functional levels with respect to the areas of his IEP goals and objectives, both before and immediately after his being in the playgroup. To the

knowledge of the Level II Hearing Officer, however, no such data is contained in the record of this case.

Furthermore, the Level II Hearing Officer finds the argument unpersuasive even if one credits the testimony of the School District's witnesses. In the opinion of the Level II Hearing Of Officer, such testimony provides minimal support, at most, for the School District's position, well below the level the School District needs to make out its case in the context of a due process hearing. The Level II Hearing Officer reiterates two points in this connection. First, in the opinion of the Level II Hearing Officer, the School District has the burden of proving by a preponderance of the evidence that its proposed program for the Student is reasonably calculated to provide educational benefit for him. Second, the Level II Hearing Officer believes that, for the Student in this case, educational benefit means progress in regard to the areas of the goals and objectives in his current IEP at a rate that will enable him to make a successful transition to a regular education kindergarten and/or primary grades classroom.

The critical issue for the Level II Hearing Officer concerns whether the School District's proposed placement is reasonably calculated to provide educational benefit for the Student, in the immediately preceding sense. Even if the Student had actually made the gains in the early intervention playgroup described by the School District's witnesses, the Level II Hearing Officer believes this would not bear significantly upon the above issue.

As noted above, in her Decision the Level I Hearing Officer found that "[t]he preponderance of the evidence establishes that the School District's proposed IEP of April 21, 1997, did not provide ... [the Student .... with a free, appropriate public education

(FAPE) in the least restrictive environment." Based upon his review of the evidence and testimony presented in this case, the Level II Hearing Officer cannot say whether he concurs in the above finding of the Level I Hearing Officer. The Level II Hearing Officer, however, does not believe that in this case the burden of proof by a preponderance of the evidence falls upon the Parents to show that the School District's proposed placement is inappropriate for the Student. Instead, the Level II Hearing Officer considers the School District, rather than the Parents, to have the burden of proof by a preponderance of the evidence in this case. That is to say, the Level II Hearing Of Officer believes that in order to prevail, the School District must demonstrate, by a preponderance of the evidence, the appropriateness of its proposed placement for the Student. The Level II Hearing Officer concludes, for the reasons explained above, that, in his opinion, the School District has not done so.

The preceding conclusion, the Level II Hearing Officer believes, has direct implications with respect to the bearing upon this case of the decision of the U.S. Court of Appeals for the Seventh Circuit in Lachman v. Illinois State Board of Education, 852 F.2d 290 (1988). In this regard, the School District contends that its disagreement with the Parents is correctly describable as a dispute over educational methodology. For this reason, says the School District, the Level II Hearing Officer must resolve the disagreement in favor of the School District, given the holding of the court in Lachman to the effect that School Districts have the primary responsibility for "choosing the educational method most suitable to the child's needs" (Lachman at 296).

It appears to the Level II Hearing Officer that under the School District's suggested interpretation of Lachman in any case where a School District and Parents disagreed over

the appropriateness of a proposed placement, the School District could always assure an outcome in its favor simply by describing the disagreement as a difference of opinion about educational methodology. The Level II Hearing Officer does not believe that the court in Lachman intended for its holding to be understood in this way. To the contrary, in the opinion of the Level II Hearing Officer, under any reasonable interpretation, the holding of the court in Lachman does not relieve a School District of its burden of proving by a preponderance of the evidence, in the context of a due process hearing, that it has proposed an appropriate placement for the Student.

Under the ruling of the U.S. Supreme Court in School Committee of Town of Burlington" Mass. v. Department of Education of Massachusetts 471 U.S. 359 (1985), a school district has no obligation to reimburse parents for the expenses incurred with respect to an inappropriate unilateral placement. In this connection, the School District contends that the Parents' home bound program for the Student is both rigid and invariable, involves more instructional hours than necessary, contains no written behavior management plan, utilizes insufficiently trained therapists, and employs an educational methodology only appropriate for students with lower IQ's than the Students'.

Based upon his review of the evidence and testimony presented in this case, the Level II Hearing Officer cannot agree with the preceding contentions of the School District. The Level II Hearing Officer notes uncontested testimony of the Parents' expert witnesses in regard to the Parents' willingness to alter the Student's program significantly in response to his evolving needs (Tr., 10/20/97 pp. 48-49: Tr. 10/21/97 pp. 27-28, 58-60). In connection with the issue of the appropriate number of instructional hours per week, the Hearing Officer calls attention to the testimony in favor of the Parents' position by the

Parents' expert witnesses (Tr., 9119/97, pp. 290-91; Tr., 10/20 p. 42, p. 84; Psychological Evaluation by Parents' expert witness, submitted into evidence for Level I Hearing). The Level II Hearing Officer acknowledges that, in connection with this point, the School District introduced counter-evidence in the form of articles reporting educational gains for autistic students in lower intensity programs. These articles, however, the Level II Hearing Officer notes, did not indicate the extent to which the diagnostic profiles of the students in these programs corresponded to that of the Student in this case.

In regard to the School District's observation that the Parents' home bound program contains no written behavior management plan, the Level II Hearing Officer finds credible the response of the Parents that behavior management is pervasive throughout every aspect of the program. As for the School District's contention that the Parents' program utilizes insufficiently trained therapists, the Level II Hearing Officer acknowledges the probing questions posed by counsel for the School District to the Parents' consulting psychologist at the Level I Hearing. It appears to the Level II Hearing Officer, however, that the therapists have received adequate training for their assigned work, as evidenced by the significant educational gains the Student has made in his program. Finally, the Level II Hearing Officer finds no evidence in the record of this case suggesting that the Parents' program is inappropriate for the student given both his measured and estimated IQ scores. The Level II Hearing Officer thus concludes that the Parents presented ample testimony at the Level I Hearing to establish the appropriateness of their home bound program for the Student, which the School District did not succeed in rebutting. The School District argues that, apart from the issue of whether the Parents' unilateral placement in this case satisfies the Burlington requirements, the Parents, nonetheless fail to

qualify for reimbursement on equitable grounds. In this regard, the School District contends that by the time of the MDC/IEP meeting of April 21, 1997, the Parents were so strongly committed to their program that they would not even consider placing the Student in the School District's proposed program on a trial basis. The Level II Hearing Officer views the opinion of the U.S. Supreme Court in Burlington as not in any way precluding reimbursement in circumstances, such as those in this case. The Level II Hearing Officer notes, in this regard that the Parents believed the School District's placement would be detrimental to the Student, and that the School District subsequently failed to establish, by a preponderance of the evidence, that the placement was reasonably calculated to provide educational benefit for the Student.

The School District argues that in the event the Level II Hearing Officer rules in favor of the Parents he should modify the order of the Level I Hearing Officer requiring the School District to pay for 38 hours per week of one on one instruction. The School District contends in this regard that testimony of the Parents' expert witnesses, elicited on cross examination by counsel for the School District, indicates that the financial obligation of the School District should be limited to paying for only 20-25 hours per week. In the opinion of the Level II Hearing Of Officer, some of the testimony of the Parents' expert witnesses suggested by implication the possibility that the Student could derive benefit from a program with 20-25 hours of direct one on one instruction. The Level II Hearing Of Officer, however, can find no evidence or testimony in the record of this case, specifically based upon an individualized evaluation of the student's capabilities and needs, to indicate, by a preponderance of the evidence, that this would be true. The Level II Hearing Officer

thus declines to modify the order of the Level I Hearing Officer that the School District pay for 38 hours of one on one instruction.

The School District contends that the Level I Hearing Officer's order, calling for the School District to pay for an extended school year of up to 52 weeks was excessive and vague. So also, says the School District, is the period of two and a half years encompassed by the Level I Hearing Officer's orders. The Level II Hearing Officer finds neither of the above orders excessive or vague. In regard to the second order, the Level II Hearing Officer that the duration of services under the order must be reconsidered annually at the IEP meeting for the Student.

The School District argues that the Level I Hearing Officer erred in requiring the School District to reimburse the Parents for supporting services at the cost charged to the Parents. In this regard the School District contends its obligation should be set at the rate the School District would normally and customarily pay for such services. The Level II Hearing Officer agrees with the School District on this point. Finally, the School District contends that the Level I Hearing Officer also erred in ordering the School District to reimburse the Parents for five evaluations. Under federal regulations, says the School District, the Parents are only entitled to, at most, reimbursement for one evaluation, noting, in this regard, the text of 34 C.F.R. 502(b), which states: "A parent has the right to an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency." It appears to the Level II Hearing Officer that none of the five evaluations for which the Level I Hearing Officer ordered reimbursement were obtained by the Parents specifically because of disagreeing with evaluations conducted by the School District. Insofar as such disagreement is a condition for reimbursement under

the above regulation, the Level II Hearing Officer concludes that the Level I Hearing Officer erred in ordering the School District to reimburse the Parents for any of the five evaluations.
 

 Order

 The Level II Hearing Officer finds that the School District failed to establish by a preponderance of the evidence that it has proposed an appropriate program for the Student. The Level II Hearing Officer thus hereby upholds the following orders of the Level I Hearing Officer in their entirety: Order 1 (A through F), Order 2 (A through D), Orders 3A and 3B.

The Level II Hearing Officer hereby modifies Order 3C of the Level I Hearing Officer to specify that the reimbursable expenses mentioned in that order shall be calculated at rates for each expense that are reasonable and normal for the School District.

 The Level II Hearing Officer hereby overturns Order 3D of the Level I Hearing Officer in its entirety.

The School District shall submit proof of compliance with this order to the Regulatory and Operations Section of the Illinois State Board of Education, 100 North First Street, Springfield, Illinois 62777 within thirty (30) days from the receipt of this decision.
 

Robert F. Ladenson

Level II Hearing Officer

June 1, 1998