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Dara v Malden Public Schools – BSEA #02-2066

<br /> Dara v Malden Public Schools – BSEA #02-2066<br />



BSEA# 02-2066



This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred on June 17-18, 2003 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.

Those present for all or part of the hearing were:


Michael Harvey Parents’ Expert; Psychologist

Frances Demiany Psychologist

Edward Mulligan Director; EDCO Program for the Deaf and Hard of Hearing

Anne Hanifan Program Manager, Malden Public Schools

Josef Wexler School Psychologist, Malden Public Schools

Robin Luich Special Education Teacher, Salemwood School, Malden

Diane Dmytryk School Adjustment Counselor/TEAM Chairperson, Malden

Catherine Mangie School Adjustment Counselor, Malden

Louise London Speech Pathologist, Malden Public Schools

Veronica Papenfus Administrator of Pupil Personnel, Malden Public Schools

Mary Ellen Sowyrda Attorney, Malden Public Schools

Beth Ross Law Clerk, Murphy, Hesse, Toomey and Lehane

Richard Ames Attorney for Guardian

Kathleen Yaeger Law Intern, BSEA

Joan Beron Hearing Officer, BSEA

Gayle Ohman Court Stenographer, Catougno Court Reporting

The official record of the hearing consists of Parent’s2 Exhibits marked P1-P80 and School Exhibits marked S1-60 and approximately two days of stenographic, recorded oral testimony and visual testimony3 . The record closed on August 15, 2003 when the Hearing Officer received written closing arguments from both Parties.


I. Does the IEP designating a program at the Salemwood School in Malden, resulting from a TEAM meeting on May 18, 2001, covering the period from June 2001-June 2002 maximize Student’s educational development in the least restrictive environment?

II. Does the IEP amendment designating a program at the Salemwood School in Malden, resulting from a TEAM meeting on October 22, 2001, covering the period from September 6, 2001 to June 30, 2002, maximize Student’s educational development in the least restrictive environment?

III. Does the IEP designating a program at the Salemwood School in Malden, resulting from a TEAM meeting on December 17, 2002, covering the period from December 17, 2002 to December 17, 2003 provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

IV. Does the IEP amendment designating a program at the Salemwood School in Malden, resulting from a TEAM meeting on February 4, 2003, covering the period from February 4, 2003 to December 17, 2003 provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE)4 ?

V. If not, does Student require an out of district program to achieve a FAPE in the LRE?

VI. If so, does the EDCO program provide Student with a FAPE in the LRE?

VII. Did Malden commit any procedural violations that denied Student a FAPE?


Student is hearing impaired and has also suffered abuse and neglect by his parents. He does not use the auditory trainer or consistently wear his hearing aids and as a result misses much of the information presented in class. Student requires a program that uses sign language so that he can access the information presented to him. EDCO is appropriate for Student because it provides him with the total communication and the challenging curriculum Student requires to achieve a FAPE.


Student has good residual hearing and is able to access the curriculum. Student used the auditory trainer and has worn the hearing aids in school. He did well there and had many friends. EDCO is too restrictive for Student and does not provide the services Student requires to address his Post Traumatic Stress Disorder (PTSD) and other social emotional issues.


1. Student (d.o.b. November 25, 1988) is a creative, handsome, athletic and popular fourteen and a half-year-old 7th grade student with a great sense of humor, who enjoys football and other sports, making jokes and break dancing (Guardian, Demiany, Papenfus, Dmytryk, London, Wexler). Student is diagnosed with a mild to moderate downward sloping (low to high frequency) sensorineural (nerve-type) hearing impairment. Student also has a Conduct Disorder and PTSD (Guardian, Demiany, Papenfus, Dmytryk, London, see S1).

2. Guardian believes that Student became hearing impaired at age two as a result of a high fever however Student may have been born with this condition (Guardian, see P27). Student can converse in one to one or small group situations but has trouble in group situations or when there is noise or music in the background or interference with speaking such as chewing gum (Harvey). Student can not hear breathing, whispering or ticking clocks because they are outside of his hearing range. Higher frequency sounds such as “f”, “s”, “th”, “z”, “v”, “ch”, “sh”, “p’, “h”, “g”, “k”, “r”, “i”, “o” “a”, “r’ are also outside Student’s hearing threshold when he is not using amplification and because of this sensorineural loss, sounds may be distorted even when amplification is used (P72, Luich).

3. Student has lived with his Guardian in Malden, Massachusetts since approximately September 2000 (Guardian). Guardian received temporary guardianship of Student on October 10, 2000 and has had permanent guardianship since January 17, 2001 (Guardian, P2, P3).

4. Student’s mother is a Cambodian refugee. Student’s father is Caucasian. Guardian has known Student’s Mother and her family since she was about eleven years old. Student’s Mother was physically abused at home and put into foster care due to her Mother’s alcoholism. While in foster care Student’s mother became pregnant with Student (Guardian). Student and Mother then went to live with Guardian remaining there for four months. Mother was not attentive to Student. Id. Mother then moved in with Father remaining with him in an unstable home environment for three years ( see Guardian).

5. Student displayed delayed language in Khmer and in English. He also displayed behavior problems in the home; see (P34). By the time Student was four years old he had moved seven times (Guardian). In approximately December 1992, DSS arranged for Student to receive an evaluation through Franciscan Children’s Hospital (Franciscan). Id. Audiological testing done in February 1993 first revealed the mild to moderate downward sloping hearing loss in both ears. Student showed corresponding receptive and expressive language delays at less than an eighteen-month level. Student also displayed behavior control/socialization skills at a 1.9 grade level that evaluators felt was partly due to the hearing loss (P34). Franciscan recommended that Student be fitted for hearing aids and an FM auditory trainer. Franciscan was also recommended that Student be immediately referred for a CORE evaluation and that Student be placed in a substantially separate language-based preschool program with a strong behavior management and parent training component. Franciscan also recommended that Student receive individual speech/language therapy three times weekly with a therapist experienced in working with hearing impaired children with speech therapy focusing on improving auditory comprehension, increasing receptive and receptive vocabulary and increasing speech production (P34).

6. Mother did not arrange for the recommended evaluation. She and Student moved several times. In the summer of 1993 Student moved to live with Father on an Air Force Base in Spokane, Washington (Guardian). Guardian phoned Father approximately four times per year. Father told her that he was having a tough time being a single parent and that Student had been thrown out of kindergarten. On other occasions Father told Guardian that Student had been thrown out of his after-school program because he had tipped over a vending machine and that Student was acting out at home. Guardian suggested therapy but Father did not obtain it. Father was eventually thrown off base and moved with Student at least two additional times. Id.

7. When Student was approximately seven years old Father married and moved to Dayton, Ohio with Student and his new wife and baby (Guardian). Student was oppositional with his stepmother. Stepmother responded by locking Student out of the house until his Father came home from work (Guardian). Father also physically abused Student; see (P23).

8. During the summer when Student was eight years old, Student was sent to live with Mother. Student returned to Father after four weeks (Guardian). During visits Guardian observed that Student was only wearing one of his two hearing aids and that his vocabulary and grammar was delayed for his age (Guardian).

9. During conversations with Father when Student was nine, ten or eleven5 , Father informed Guardian that Student was acting up. When Guardian asked for clarification Father informed Guardian that he was lazy and must have gotten that from his Cambodian side. (Guardian). Father also told Guardian that he didn’t want Student to be in special needs classes because he was not “stupid” like the others. Id. Father also informed Guardian that Student was bullying his younger half brothers, that they lived in a slum and could not go to the playground because it was filled with glass and that Student was hanging out with kids that were stealing and had been arrested twice (Guardian).

10. During the summer of 2000, when Student was eleven and had completed the 4 th grade, Father phoned Guardian to ask when Mother could take Student back (Guardian). Guardian informed Father that Mother was not ready to take care of Student. Guardian told Father to send Student to her and that she would take care of Student for a while until Mother got on her feet (Guardian).

11. Student began living with Guardian at the end of the summer of 2000, approximately three days before the start of his fifth grade school year (Guardian). This was his fifth move since he had moved to Ohio. Id.

12. Guardian tried to get services during the summer from the Massachusetts Commission for the Deaf and Hard of Hearing and from the Malden special education department but was not able to at that time because she was told that Student was not a resident of Massachusetts (Guardian).

13. Guardian informed Malden that Student had repeated first grade6 and that he had last completed 4 th grade in a substantially separate special education class for the hearing impaired in Dayton, Ohio (S46, Guardian). Guardian requested that Student be placed at the Beverly School for the Deaf (S46).

14. Guardian also presented Student’s birth certificate and the educational records Father sent with Student (Guardian). These records consisted of an IEP for Student’s 4 th grade placement in a self contained classroom for hearing impaired students in Dayton, Ohio taught by a teacher of the deaf and hearing impaired with speech therapy for one thirty minute session per week, direct service from an audiologist four times per school year and audiology consultation twice per school year (P14). The IEP indicated that Student communicated by listening and speaking but that without assistive devises, conversation must be very loud to be understood and Student’s performance in the classroom was affected by noise level, distance from the teacher, visibility for lipreading, familiarity with the topic and functioning of classroom amplification (P14). The IEP also indicated that Student uses classroom FM amplification and that his personal amplification was in poor repair (P14). The IEP also noted that Student required amplification and preferential seating for lipreading. The IEP did not contain any other information regarding acoustical accommodations and was devoid of any reference to sign language instruction ( see P14).

15. Guardian also presented a three-year reevaluation conducted on May 4, 2000 showing strengths in math and science with grade to above level math skills and reading skills on the upper 2 nd to mid third grade level, articulation and syntax deficits and many below average social emotional skills7 (Guardian, see P31-33, P14-15, P31). Student’s results on auditory comprehension testing showed that Student’s average performance was about 1 standard deviation better than his peers with moderately severe hearing loss and that his performance was most like students enrolled in a regular program (S15).

16. Father did not send any other educational records (Guardian). Guardian attempted to get Student’s educational records from Dayton but was unsuccessful (Guardian). Malden did not seek parental consent to obtain additional records from Dayton but did try to phone Dayton for additional information. Dayton did not respond to any of Malden’s requests for information or records (Papenfus).8

17. Guardian also presented Malden with a notarized hand-written power of attorney from Father giving Guardian temporary custody of Student from August 28, 2000 until July 2001 (P1). Father stated that he would determine if Guardian should have permanent custody of Student during this time; see (P1). Father gave Guardian full parental control but reserved the right to make or change any decision regarding Student’s well-being in accordance with Massachusetts and/or federal law; see (P1). Malden informed Guardian that they would request consent to evaluate Student (Papenfus, see P61). It also informed Guardian that it would recognize Guardian as the adult authorized to care for Student in her home but that until Guardian had legal authority specifying that she is Student’s guardian Malden would need to seek authorization for services from Student’s mother or father; see (S60). Malden requested consent for an evaluation on September 6, 2000 (P13). Father consented to the evaluation on September 7, 2000 (S61).

18. Student began 5 th grade at the Salemwood School in a self-contained classroom with Mr. Aquino with Math, Physical Education, Art, Music, Computer and Technical Education in an inclusion setting and the use of an FM loop system auditory trainer (S15). Malden chose this classroom because Student had been in a self-contained classroom with an auditory trainer within a public school elementary setting in Dayton, Ohio and had been mainstreamed for math and nonacademics (Papenfus). Malden increased the speech therapy to twice a week (Papenfus, see P15). The speech/language pathologist (SLP), Louise London, gave recommendations for working with hearing-impaired students to Mr. Aquino and to the gym, computer, art and music teachers (P62). Ms. London noted that Student had only one hearing aid and that Student may have a tendency to say that he could understand what was being said even when he might not understand. Ms. London suggested that it might be necessary to repeat information and take Student aside to ask him to repeat what was said (P62). Malden did not provide direct service or consultation from an audiologist.

19. The other students in the class were not hearing impaired, and Mr. Aquino, although a certified special education teacher, is not a certified teacher of the deaf and hard of hearing (Papenfus). Student loved Mr. Aquino and spent time with his classmates outside of the classroom (Guardian).

20. Malden conducted a psychological evaluation in October and November 2000 (S13). Student was cooperative and displayed good effort during testing. Student achieved an average Performance Scale I.Q. (106) on the Wechsler Intelligence Scale for Children-III Edition (WISC-III) and a Verbal I.Q. score of 76 with considerable weakness in Student’s general fund of information, abstract thinking and accumulated word knowledge (S13). Achievement scores on the Wechsler Individual Achievement Test (WIAT) showed reading and spelling skills at the beginning of 5 th grade to be at a beginning 4 th grade level, (4.2 basic reading, 4.0 grade spelling) and math reasoning at a mid 4 th grade level (4.6 G.E.). Student displayed reading comprehension skills at a 3.6 grade level (S13). Although Student indicated that he could hear and understand questions, the evaluator noted that the verbal scores should be interpreted cautiously because Student was only wearing one hearing aid during all three days of testing and did not use his synthesizer on the third day of testing (S13). Student displayed average abilities in his encoding of verbal information, memory retrieval and attention and perceptual organization and above average visual processing speed and visual memory (S13).

Projective testing and observation showed that Student had signs of emotional immaturity and a tendency to be guarded, as well as feelings of insecurity and anxiety at times. Discussions with the evaluator showed a feeling of self-consciousness about his synthesizer because it was not loud enough, too itchy, had too much static, was too hard to carry and was visible to his classmates. Student however generally displayed a positive attitude toward school, relaying that he enjoyed his homeroom, Mr. Aquino’s classroom and going to math class. He appeared however to lack confidence in his ability to take other classes (i.e., science and social studies) outside of his current classroom (S13). The evaluator recommended that Student receive preferential seating to increase his ability to listen and learn in the classroom, that eye contact be established before instructions are given, that teachers speak slowly and loudly and that Student be given additional time to formulate thoughts and complete classroom assignments. The evaluator also recommended individual counseling outside of school to address emotional concerns relating to his hearing impairment (S13).

21. Ms. London conducted speech/language testing in October and November 2000 (S15). Student went willingly and was cooperative during testing and did not seem distracted. He initiated and maintained eye contact with Ms. London but did not regularly look at her when she spoke to him even during those times when he found it necessary to ask her to repeat herself because he hadn’t heard or listened to her words (S15). Student’s speech was intelligible with frequency, intensity, quality, rate, resonance and rhythm within normal limits . He made errors grammar, syntax and sentence structure as well as inconsistent misarticulations and/or omissions in various sounds. He was able to correct these sounds with a visual stimulus (sign language or written cue) but not able to generalize into conversation (S15, see also P14)9 . Student’s auditory discrimination was one year below his grade placement at the time of testing. Despite his assertions to the contrary, Student also experienced difficulty in attending to, processing and responding to orally read information, even when using one of his two hearing aids and the auditory trainer (S15). Student was, however, able to spontaneously use compensatory strategies such as re-auditorization during auditory tests10 . Id.

During language testing Student scored in the average range in his ability to perceive associations between words, in recall and in rapid automatic naming. He scored in the low average range in receptive language, word memory, and word and sentence segmentation and below average in his sentence assembly, auditory discrimination, expressive vocabulary, sentence formulation and story construction and ability to follow oral directions. Student scored in the poor range in his receptive vocabulary skills, his knowledge of opposites, synonyms, vocabulary knowledge and ability to answer questions from orally presented paragraphs (S15).

Ms. London recommended that Student continue speech/language therapy to improve articulation and receptive and expressive language skills and that Student’s Guardian pursue acquisition of a second hearing aid and continued use of the auditory trainer in class if recommended by a certified audiologist (S15).

Ms. London also recommended several modifications including:

· Priority seating closest to where teachers did most of their talking;

· That teachers face Student when they are speaking;

· That teachers observe whether Student is attending and if not, gently refocus student to task;

· That teachers repeat or reword directions, instructions, questions and comments;

· That teachers quietly question Student to ensure his understanding of assignments and comments;

· That adults use language that is not too lengthy or linguistically complex;

· That adults use speech which is clearly articulated and spoken at an appropriate rate;

· That teachers present information in a variety of modalities (i.e., graphic organizers, webs, maps, supervised note-taking) to facilitate Student’s understanding;

· That teachers give Student extra time to verbally express his questions/ideas;

· That Student be encouraged to ask his teachers to repeat material and as he matures to encourage Student to ask teachers to explain the material in a different way or to ask teachers for extra help (S15).

22. The TEAM convened on November 27, 2000 to develop an IEP for Student (P12). The TEAM found Student eligible for special education due to his hearing impairment and speech and language difficulties resulting from the hearing loss (P12). The TEAM included most of the speech/language pathologist’s and school psychologist’s modifications into the IEP; compare (S15, S13, P12). Malden proposed that Student continue to receive daily instruction in Mr. Aquino’s resource room for two periods per day to build reading comprehension and language skills. It also proposed that Student attend science, math with academic support in these classes twice a week. Student would also receive language arts in the regular education 5 th grade classroom and would begin reading and social studies in the inclusion class beginning January 2001 Student would also receive school counseling once per week, speech/language therapy twice per week and consultation from the speech/language pathologist and the learning center teacher as needed (P12).

23. Guardian had concerns about Student’s placement because Student had told her that another student had teased him about his hearing aids in the lunch line at school (Guardian). Student also did not like to use the auditory trainer and often he would not use it in Mr. Aquino’s class. Student would also at times have to go back to class because he would not bring it to speech/language therapy and although he was required to wear the trainer in math and language arts may have turned off the system (London, Guardian, see S15, P57). Guardian also felt that Student was inappropriately placed because Mr. Aquino told her that he picked up material faster than the other kids in the resource room and then would start to not pay attention (Guardian). Student was also engaged in fighting, bullying and defiant behaviors at school (P80/Guardian’s affidavit). She believed that the class had children with cognitive impairments (Guardian, see P58, P59). Malden informed Guardian that they did not label students and that Student was placed in a self-contained program due to information it received from the Dayton Public Schools (P58).11 Guardian requested an independent evaluation (P56).

24. Student received an independent audiological evaluation at the New England Medical Center on December 12, 2000 (P28). The results remained unchanged from the exam given in Dayton on April 27, 2000; compare (P28, P32).12 With his right hearing aid, Student was able to recognize 84% of the words in his right ear and 88 % in his left ear (P28). Checks of Student’s hearing aids showed that the right hearing aid was functional but not optimal and the left aid caused internal feedback and was unwearable in its present condition. Checks of the FM system showed very little gain (volume) indicating probable dysfunction; see (P28). This performance was consistent with Student’s reports to the audiologist and his school speech/language pathologist ( see P28, S15).13 The audiologist recommended binaural digital or programmable FM compatible hearing aids. The audiologist also requested that Guardian contact the school to determine whether the FM system was discharged or in need of repair (P28). The audiologist indicated that he would contact the school to see whether they could provide another FM system. He also referred Guardian to the Department of Public Health to see if Student would be eligible for their hearing aid program (P28). Guardian followed through with Malden two days later (P55). Malden indicated that the FM system was being charged and appeared to be working (P55).

25. Guardian partially rejected the IEP in January 2001 because it called for mainstreaming Student into science and social studies (Guardian, see (P11, P12). She also noted that the “FM system must provide appreciable auditory gain” that “other educational needs should include “behavior” and “communication” (P12). On January 21, 2001 Guardian informed Malden that she wanted Student placed at the Learning Center for Deaf Children at the Randolph campus (P54). Malden informed Guardian that it would consider her request when the independent evaluations were completed and the TEAM reconvened to consider them (P53).

26. On January 12, 2001 Kristen Karmon, a SLP from the Children’s Hospital’s Deafness Network, conducted the independent speech/language evaluation (P27). The written evaluation was faxed to Guardian on February 15, 2001 (P27). Ms. Karmon used a loop FM system. Although Student stated that he did not care for the system he independently switched his hearing aid to the “T” switch so that he could utilize the system (P27). Student appeared to be comfortable with the examiner by the end of the assessment. Although his speech contained mild articulation errors of some high frequency sounds consistent with his hearing loss and significant errors in the pronunciation of words, his vocal quality was good and his intelligibility was good to unfamiliar listeners in all contexts. However, Student’s decreased volume level, increased rate of speech and errors in grammar usage did affect his overall intelligibility at times (P27).

Ms. Karmon assessed Student’s receptive and expressive language using the Test of Language Competence-Expanded Edition Level 2. The Test of Written Language-3 rd Edition (TOWL-3) was administered to assess Student’s written language skills. Although both tests are not normed on deaf and hard of hearing students, results were considered to be a valid by both parties14 and provided a valid comparison of Student’s skills to the standards of his hearing peers (P27). Student exhibited severe deficits in both receptive and expressive language scoring at the 1-2% rank. Student had significant difficulty identifying words that had multiple meanings. He also had difficulty drawing inferences and difficulty seeing abstract meanings or meanings based on context. In addition, Student demonstrated significant errors in his word and sentence structure including errors in noun-verb agreement, plurals, past tenses and errors attributable to his hearing because they require use of high frequency speech sounds (“s”, “z” and “t”) that Student can not hear even with his hearing aids. Student’s writing samples showed creativity and some sense of a story line with a beginning, middle and end but contained weak sentence structure, grammar usage and vocabulary (P27).

Ms. Karmon noted that as academic and linguistic demands increase, a hard of hearing child’s ability to compensate and cope often diminishes. She recommended that Student be educated in a reduced size class (8-10 students) with students who have a similar cognitive, linguistic and academic levels (P27, P22). The classrooms should be acoustically treated with carpeting, acoustic tiles and drapes across expansive windows to reduce reverberation, and other background noise. Ms. Karmon also noted that interfering background noise could be reduced by the use of an FM modification system and recommended the new ear-level FM technology be considered because it lessens the social and emotional impact associated with wearing a device that can easily be seen by others (P27). In addition, Ms. Karmon recommended the use of visual aids (i.e., illustrations, transparencies, print material, hands-on materials, graphics), the use of sign to augment spoken speech, access to mainstream classes and consultation to teachers to implement appropriate modifications (P27, P22). It would also be important for Student to interact with other hard of hearing peers to address the emotional and behavioral issues frequently associated with hearing loss and have access to school based counseling and after-school activities to help foster peer interactions (P27, P22). Ms. Karmon noted that Student would optimally benefit from a program that is specifically designed to educate hard of hearing children because such a program includes teachers and professionals knowledgeable about and skilled in instructing children with hearing loss, provides an acoustically modified environment and offers Student the opportunity to be among peers with similar social-emotional concerns associated with hearing loss (P27). Ms. Karmon however did not require a substantially separate hearing-impaired program for Student; see (P27, P22).

27. Dr. Demiany first became acquainted with Student when she conducted an independent psychological evaluation of Student on December 26, 2000, January 23, 2001, February 14, 2001 and April 5, 2001. She completed her report on April 15, 2001 (P23). Dr. Demiany is proficient in American Sign Language (ASL) at a conversational level, has approximately twenty years of experience working with deaf and hard of hearing clients and consults with schools and agencies serving deaf and hard of hearing persons; Id. She has testified on behalf or parents and school systems advocating for both out of district and school placements (Demiany). Dr. Demiany conducted her evaluation in voice because Student spoke and did not know much sign (Demiany). Some gestures and signs were used to optimize comprehension. Dr. Demiany also interviewed Guardian and Student and administered parts of the WISC-III, Woodcock Reading Mastery Tests, the Bender Gestalt and Bender Gestalt-Memory, the TAT, Rorschach tests and projective drawings. Dr. Demiany also observed one of Student’s resource room classes and one inclusion class and spoke to the school adjustment counselor and Mr. Aquino (Demiany, Dymtryk). The assessments were not normed on deaf and hard of hearing students ( see P23) .

During testing Student exhibited average functioning in arithmetic and language based concepts and strong short-term visual memory and visual processing skills. He showed significant deficits in his fund of knowledge, general vocabulary development and comprehension of social situations. Student’s comprehension increased with the addition of signs and gestures. Student’s word recognition in reading was at the 3.9 grade level. Paragraph skills were at the 3.3 grade level and comprehension of specific words in analogy form was the 4.0 grade level.15 (P23).

During clinical interviews Student informed Dr. Demiany that he visited his mother on weekends and holidays and that he would like to live with her. He also told Dr. Demiany that that his mother and father physically abused him, sometimes injuring him. Student acknowledged his own acting out behavior with Parents and Guardian but was emphatic in stating that he does not like to state that he is sorry for acting out because his dad used to hit him and never apologized (P23). Projective drawings were indicative of significant anxiety, low self-esteem and possible history of trauma and showed that Student was overwhelmed by his emotions and had difficulty modulating his impulses because of this (P23). Student’s responses to TAT cards indicated notable signs of depression and anxiety with a great deal of sadness and loss related to his family and a wish to be reunited with them and cared for by them. Student showed no indication of aggression and was sensitive to the rights of others, has empathy and wishes to do the right thing (P23). Dr. Demiany diagnosed Student with PTSD resulting from early and chronic psychological trauma with secondary depression and anxiety. She noted that the hearing loss was likely to contribute to Student’s feelings of being different and alienated from others and was also likely to affect his interpretations of verbal interactions with others (P23, Demiany).

28. Malden administered updated math and reading evaluations in mid March 2001 (P25, P26). Student at that time was in the 6 th month of the 5 th grade. Testing on the Stanford Diagnostic showed math scores at the 5 th grade 5 th month (40 th percentile) (scaled score 655) in concepts and applications and the 5 th grade 3 rd month (35 th percentile) (scaled score 653) in computation (P25). In reading, Student tested at the 2.9 grade equivalent (13 th percentile) (scaled score 615) in comprehension, the 3.2 grade equivalent (5 th percentile) (scaled score 595) in vocabulary and the 5.1 grade equivalent (36 th percentile) (scaled score 644) in scanning (P26).

29. Dr. Demiany observed Student in his resource room and language arts classroom on April 5, 2000 (Demiany, P23). Dr. Demiany observed that although Student could hear the teacher he had difficulty following class discussion when other students spoke. The resource room appeared to have students who were much less capable than Student. Student was distracted by disruptions in the classroom and exhibited more fooling around in the classroom (P23).

Student was much more attentive in the mainstream classroom but was slightly behind the other students in responding because he needed to look at other students for visual cues (P23). Dr. Demiany told the school adjustment counselor (Ms. Dmytryk) that she was impressed with the language arts classroom that she had seen (Dmytryk). Ms. Demiany also told Ms. Dmytryk that she was feeling more positively about Student remaining at the Salemwood School and that she would be recommending that Student remain there with more mainstream classes to challenge him and a consultant to advise the staff regarding issues regarding hearing impairment; Id. She subsequently left a voicemail message for Ms. Dmytryk telling her that she would not be recommending the Salemwood School (Dmytryk). Dr. Demiany drafted her report on April 15, 2001 and sent it to Malden. Dr. Demiany recommended that given the severity of Student’s hearing loss, his style as a visual learner and the significant language deficits associated with his hearing loss and multiple school placements, the appropriate school placement for Student would be one in which there are comprehensive services for deaf and hard of hearing youngsters (P23).

Dr. Demiany further recommended:

· language instruction and academic tutoring by a certified teacher of the deaf;

· a peer group of other deaf and hard of hearing youngsters with similar cognitive skills and language delays;

· preferential seating in classes;

· involvement in mainstream classes with teachers who have had experience in working with deaf and hard of hearing students, and experience working with teachers of the deaf and interpreters;

· sign language instruction as part of his educational program to allow him access to interpreters in the mainstream classroom;

· access to sign language interpreters in his mainstream classes;

· weekly school counseling from a counselor for the deaf and hard of hearing to work on self-esteem and behavioral issues in school as well as issues relating to feelings of being different and feelings of isolation;

· speech/language therapy by a clinician specifically trained to work with deaf and hard of hearing youngsters;

· encouragement of the use of but elimination of the requirement for the use of the FM system due to Student’s feelings of being different;

Dr. Demiany also recommended summer tutoring as well as private individual therapy with a clinician trained in deafness to address emotional concerns (P23).

30. Student’s third term progress reports came out on April 29, 2001 (P51). At that point during the third term Student was receiving an A in P.E. and a B+ in sewing with satisfactory conduct, effort, attitude and participation. His third term progress mark for music was a C+ with satisfactory effort, participation and attitude; however improvement was needed in his conduct in the class. Student was very talented artistically (London, Dmytryk). Student however received a B- in art because of his conduct and effort in that class (P51, see also P80). He received a third quarter progress grade of D in Inclusion English needing improvement in attitude, tests, homework and effort. He received a C- in inclusion math with borderline conduct in that class (P51, see also P80). By the end of the year Student was able to pull his grades up to an A in computer, a B in occupational education, a B+ in music and an A in art with excellent effort. Student’s final marks in academics ranged from B+ s-B- s (S47, P51A).

31. The TEAM reconvened on May 18, 2001 to review Dr. Demiany’s evaluation (P10, Papenfus, Guardian, Demiany). The TEAM also reviewed Kristen Karmon’s speech/language evaluation (Dmytryk). That evaluation was not discussed at length; see (P10). At the time of the TEAM meeting Dr. Demiany had begun individual therapy with Student at the Guardian’s request, eventually seeing him for three 45 minute sessions per month ( see Demiany).

32. At the TEAM meeting Student’s teachers reported that Student was very social and well liked (P10, London, Dmytryk). Ms. London noted that Student was very motivated in his speech therapy, responded well to positive reinforcement and a rewards system and had appropriate behavior and was progressing well ( see London, P10). His homeroom/inclusion teacher also reported that Student did well in his classes and had appropriate behavior there (P10). Malden staff did not notice that Student was being teased but did note that Student did tease other resource room students that he perceived were less capable than him (London, Dmytryk, P10). Student also did not always follow the rules in the resource room but could be controlled with behavioral motivators. Student also did not follow many rules at home (Guardian). Mr. Aquino gave Guardian a copy of the behavior sheet used at school but did not tailor a plan for use at home (P80).

Mr. Aquino was concerned that Student was bored and had outgrown the resource room. He recommended that he move into more regular classes with the use of a FM unit or a loop system (P10, London). Student’s homeroom/inclusion teacher also felt that he should be integrated into more classes, especially science, because of the hands-on nature of the class (P10). Malden recommended continuing pull-out support in oral and written language development and vocabulary building and support in his inclusion classes.

Dr. Demiany felt however that Student should be in a deaf/hard of hearing program taught by a teacher of the hearing impaired. She noted that Student needs to be with typical peers but that Student can not hear information presented by other students in the class due to background noise. She noted that Student is a visual learner and requires access to sign language to access the curriculum (P10, Demiany). Malden questioned Student’s need for sign language because he did not know the language and appeared to be able to respond appropriately in class and therapy or (although inconsistently) said, “what” when he did not understand (London, see P10). Malden felt that staff should provide accommodations for Student’s hearing loss and that Student be given supports and training to consistently advocate for himself to let people know when he needed to have something repeated. Id.

Guardian requested the EDCO program in Newton or the Learning Center for Deaf Children in Randolph and gave the TEAM written information about EDCO and possibly the Learning Center (Guardian, Dmytryk, P10). Malden recommended that Student receive a daily period of learning center support in language arts and additional support twice per week across the curriculum. It also recommended school-based counseling once a week to address emotional concerns and speech/language therapy twice a week to address articulation, language development and vocabulary. The TEAM also considered Guardian’s request for summer tutoring with a teacher of the deaf and hard of hearing and offered a six week program of tutoring in science and social studies with an emphasis on vocabulary and reading that he would find in the curriculum. It also recommended consultation with a professional who works with the hearing impaired (P10, Guardian, Dmytryk).

33. On May 25, 2001 Malden sent Guardian an IEP recommending a program in the Salemwood School with four periods of inclusion daily and fifteen minutes of consultation from the learning center teacher and the SLP. Student would also receive two sessions of speech/language therapy and one session of counseling per week, daily resource room instruction in reading/language arts and additional resource room instruction twice a week to address social studies, science and math issues in the inclusion class. The IEP also indicated that eighteen hours (three hours per week for six weeks) of tutoring in social studies, science and language arts would be provided during the summer of 2001 to provide instructional support in curriculum areas where Student was not included in regular education classes to help him better prepare for sixth grade (P5).

The IEP noted that Student required an auditory trainer in each of his classes so that he can hear classroom instruction. Also noted was Student’s need for multi-modal instruction, visual cues, repeating of direction and information from classmates, use of open ended discreet questions to be sure that Student understands information, increased time to process information and priority seating. The IEP also called for modeling, daily checking of the auditory trainer and presentation of material that is not too linguistically complex. The IEP also separately listed twenty instructional recommendations to address communication issues associated with hearing loss; see (S5, P9).16

34. Ms. Karmon’s recommendations for acoustic modifications in the room (carpets, acoustic tiles, drapes) and the ear level FM modification system were not included in the IEP; compare (P27, S5). The IEP also did not include Ms. Karmon’s recommendation for a an opportunity to interact with other hard of hearing peers with similar social-emotional concerns; Id.

35. Guardian sent back the placement consent form on June 15, 2001 rejecting the placement decision. (P9). On June 20, 2001 Guardian sent Ms. Dmytryk an addendum to the response. In that addendum Guardian rejected omissions in text of the IEP and suggested alternative language and goals and objectives. Guardian also rejected the omission of a general training of the teachers from a consultant of the deaf and hard of hearing and rejected the proposal of fifteen minutes of consultation a month asking for an hour per month. She also rejected the frequency of learning center support requesting social science support in the resource room for three additional sessions per week and one additional session of speech and language therapy weekly; see (P11). Guardian did accept the tutoring offered but rejected the amount of tutoring per week and omission of tutoring by a certified teacher of the hearing impaired; Id. The page that this information was on was not in Ms. Dmytryk’s box; see (P11).

36. Guardian called Malden during the summer to inquire about the tutoring. Malden informed her that they believed that Guardian had rejected the entire IEP including tutoring (Guardian). Malden did send a tutor who would be one of Student’s teachers in the learning center in 6 th grade (Dmytryk). The first session took place in the library. The tutor then came to the house for the second session because Student did not want to meet in the library. The session did not occur because Student got into a fight with Guardian and began swearing and swinging scissors at her attempting to cut her hair. The tutor made another attempt to work with Student but he did not respond to her behaviorally and did not get much out of the tutoring sessions (Guardian). Guardian suspended the tutoring; see (Guardian).

37. In mid August the Learning Center informed her that they were not going to have a 6 th grade class in Randolph (Guardian). Guardian was disappointed because the Learning Center was her first choice because it seemed to be geared toward hearing impaired students (Guardian). Student had been accepted into EDCO’s sixth grade program on or about February 26, 2001 contingent upon approval by Malden and a corresponding IEP (P47). Malden was informed of the conditional acceptance on that date (P47, S39).Guardian and Student had visited EDCO in February17 and spoke to Dr. Mulligan, the director of the program (Mulligan, Guardian, but see (P47). Student was intimidated by the wide use of sign language because he did not know it (Mulligan). Dr. Mulligan interviewed Guardian and Student and took him to tour the classes and meet people. He observed that although Student had residual hearing, he was not picking up all the information and could benefit from the total communication approach of the program (Mulligan, see also P40). On August 22, 2001 Guardian informed Ms. Papenfus that she intended to send Student to the EDCO program at the F.A. Day Middle School in Newton and was seeking reimbursement for his program; see (P50). When Malden informed Guardian that they would not fund EDCO, Guardian asked EDCO if she could pay for the placement herself and EDCO agreed, even though they had never accepted a student without town funding before (Guardian, Mulligan).

38. Student began 6 th grade attending the EDCO program in September 2001 (Mulligan, Guardian). The EDCO deaf and hard of hearing program18 began in 1973 because before that time deaf students were sent to live at schools for the deaf or sent back into the mainstream without any services once they completed eighth grade (Mulligan, see also (P40). The program services 44 deaf and hard of hearing middle and high school students. The Middle School is housed in the F.A. Day Middle School (Day) in Newton, MA Id. .

39. EDCO does not service students with behavior problems requiring a behavior plan although it may put students on a check list system (Mulligan). EDCO students who need a more restrictive placement may go to other programs. EDCO has not recommended that students be returned to public middle or high school programs because its philosophy is that deaf and hard of hearing students require a peer group of deaf or hard of hearing peers that does not naturally exist in the public schools (Mulligan, see also P40). EDCO students who have completed eighth grade then attend high school at Newton North High School (Newton North) (Mulligan, P40).

40. Eleven students attend the Middle School program. Three of those eleven students, including student, are hard of hearing (Mulligan, P40).19 EDCO students can either receive instruction in self contained classes with deaf and hard of hearing students with a teacher of the deaf and hard of hearing and/or in integrated classes with a teacher of the deaf/hard of hearing or an interpreter and the regular public school teacher (Mulligan, P40). All integrated EDCO middle school students have a required resource room period where students are pretaught and retaught concepts taught in the integrated class; Id. Speech and language therapy and group counseling are also requirements for EDCO middle school students. Id. Students may also receive individual or parent counseling if the schedule allows (Mulligan). EDCO students begin the day in the cafeteria with the rest of the school. They then go to their integrated homeroom with an interpreter or a teacher of the deaf/hard of hearing. Announcements of the day are captioned. Id. Students then attend either self contained or integrated academic classes in the morning. EDCO student then have lunch with some of their regular education peers in their grade. An interpreter is not present during lunchtime. Twice a week EDCO students are brought together during lunch so they have a chance to intermingle (Mulligan). Afternoons are spent in the resource room or in nonacademic classes such as art, gym or wood shop. EDCO students may participate in any extra curricular activities available at their schools (Mulligan).

41. On October 22, 2001 EDCO developed its own IEP for Student (P7). The service delivery grid reflects that Student received counseling for two 45-minute sessions per week (P7). At EDCO, Student worked on issues of new school adjustment (P7). Student would also address issues relating to self-esteem, adolescent concerns and issues dealing with hearing loss, issues also addressed at Malden; compare (P7, P9) (Dmytryk, Mulligan). EDCO’s IEP also reflected one weekly session of speech and language therapy, a reduction of one speech therapy session per week (P7, see (P9). Like Malden, EDCO’s speech/language therapy focused on phonemic awareness and vocabulary development and articulation of word endings (P7). The therapy however did not focus on improving listening and reading comprehension or grammar, syntax and sentence structure. Nor did it address pragmatic language; compare (P7, P9). Like in Malden, Student would receive some of his instruction in inclusion classes and some in self contained classes; Id. Student however would be given an American Sign Language (ASL) interpreter or teacher of the deaf in those classes and would be seated in the front with the two to three other deaf and hard of hearing students so that he could see the interpreter ( see Mulligan, (P7). Student’s 6 th grade schedule and progress reports for 6 th grade show that Student attended inclusion math, science, art, gym and technical education and English and social studies in a self contained class with a teacher of the deaf; see (P37, P7, Mulligan, P42, P43, P45). Student was grouped with two other EDCO 6 th grade students, three 7 th graders and three eighth graders (P48). One of the 6 th graders is a female with a bilateral sloping moderate to severe/profound sensorineural hearing loss. Another is a deaf 8 th grader with a cochlear implant, another 8 th grader has mild to profound bilateral sloping hearing loss, another 8 th grader has a moderate to severe hearing loss. The other students have profound hearing losses; compare (P48).

42. On October 24, 2001, Dr. Mulligan performed educational testing on all the EDCO students using the Stanford Achievement Test for Deaf and Hard of Hearing Students 9 th edition (Stanford 9). (Mulligan, P7, see (P48). Dr. Mulligan has a doctorate and certificate of advanced graduate study in educational administration, a masters degree in deaf education and a B.A. in English and corresponding certifications ( see P74). He does not have an educational background or experience in psychology; Id. This Stanford 9 test was normed on deaf and hard of hearing students and compares deaf and hard of hearing students relative to their deaf and hearing impaired peers in the United States (Mulligan, see P77). The Intermediate 2 version of the test was given to Student (Mulligan). The Intermediate 2 level tests grade level content between mid 5 th grade to mid 6 th grade with an age range of ten to twelve years for hearing students and a norming sample of 8-18 years for deaf and hard of hearing students (P77). Student at that time was in 2 nd month of the 6 th grade. Testing on the Stanford 9 showed math scores at the 8 th grade 8 th month (96 th percentile)(scaled score 670) in problem solving, and the 5 th grade 7th month (81st percentile)(scaled score 649) in mathematical procedures (P7). In reading, Student tested at the 4.9 grade equivalent (84th percentile)(scaled score 639) in comprehension, and the 4.0 grade equivalent (79th percentile)(scaled score 613) in vocabulary. He received a 5.6 grade equivalent (79 th percentile)(scaled score 637) in spelling and the 7.9 grade equivalent (92 nd percentile)(scaled score 658) in language (P7). Student achieved 2.7 Grade Equivalents (scaled score 588) in study skills, 4.8 grade equivalents (scaled score 631) in science and a 4.9 grade equivalent (scaled score 605) in social science.20

43. EDCO completed progress reports for the first three quarters of sixth grade (P42, P43, P45). EDCO does not do progress reports in the 4 th quarter relying on the interpreters to give the next year’s teachers information about students (Mulligan). EDCO first quarter progress reports (as of November 9, 2001) note that adjusting to a new school environment was a challenge for Student and that he required a great deal of supervision and encouragement when completing his assignments. He was reluctant to use his hearing aids (P45, Guardian). He would also not use, nor did EDCO encourage Student to use, his auditory trainer even though Guardian purchased a new trainer in October 2001 ( see P35, Mulligan, P45, Guardian).

Student received A’s in P.E. and Art but displayed poor or fair conduct even in these classes (P45). Student also carried over his poor conduct in both his inclusion and self contained classes. His teachers also noted that Student did not pay attention or participate in class (P45). Despite good skills in math, Student received a 1 st term grade of B- because his homework was inconsistent and he did not always pay attention to teacher instruction despite an interpreter in the classroom (P45, see (P41). He received a 1 st term grade of C- in science because he seldom asked for clarification from the teacher or the interpreter and was too dependent upon his neighbors to find out what he was supposed to be doing (P45, see (P41).

In individual therapy Student expressed himself by drawing pictures. He did ask the therapist how to sign Pictionary clues or phrases he wanted to say to EDCO classmates (P45). During his weekly group therapy Student used the therapist as an interpreter because the other two students were deaf and used sign. Student however was able to use therapy to talk about his adjustment to a new school and boy-girl and family relationships and demonstrated leadership abilities and positive growth (P45).

44. During the second quarter Student’s grades in his special education English class dropped from an A- to a C- because his work and class participation were inconsistent despite a high motivation to learn (P45, P41). Student showed improved effort and homework completion in social studies, science and math, showed excellent conduct in P.E., technical education and art, and was a pleasure to have in class (P43, P41). His 2 nd quarter grades were a C- in English, a C in science, a B- in math, a Bin EDCO social studies, an A- in Tech ED AND an A in P.E. (P41).

45. On January 22, 2002 Malden received a report from Kristen Karmon whom Malden had retained to consult on Student’s educational programming (P22). Ms. Karmon observed Student’s program at EDCO, his proposed program at Malden, and reviewed Student’s prior assessments and interviewed personnel involved in Student’s programming (P22). Ms. Karmon recommended that Student’s program should have the following components:

· Opportunities for interaction with an appropriate peer group of similar age, academic level, hearing loss and similar communication styles;

· Educators with knowledge and skill in the communicative and educational needs of students with a hearing loss, understanding of the learning needs associated with language deficits and ability to support Student’s social and emotional needs. Such educators should have the skills necessary to appropriately modify classroom instruction;

· flexibility to allow Student access to regular mainstream classes and to resource level classes to support his language learning and reading needs;

· ongoing consultation with an educator knowledgeable about hearing loss to provide appropriate strategies to meet Student’s listening, communicative and learning needs in an integrated setting;

· support and encouragement to use amplification including hearing aids and FM system and education within an acoustically modified environment;

· encouragement and opportunity for participation in supervised after-school activities to help foster peer interactions;

· access to a school-based counselor who is familiar with the range of experiences that hard of hearing individuals encounter (including identity formation, communication and social issues) to help Student develop and practice strategies to deal with these issues;

· continuity of services (P22).

Ms. Karmon observed that EDCO offered Student an opportunity to be among peers with hearing loss but had no other hard of hearing peers whose primary communication is spoken English (P22). She also noted that Student’s primary language is spoken English and for him amplification was essential. As such, there should be an expectation of hearing aid use at school. She further noted that EDCO had not widely supported Student’s use of an FM system even though an FM system significantly reduces the effect of background noise and makes it easier to hear teachers’ instructions. She recommended appropriate training on FM use in the classroom and ear level FM technology to minimize the social and emotional impact associated with wearing a highly visible device as well as creative planning to help minimize Student’s concerns about using a FM device in class (P22). Ms. Karmon also noted that Student required acoustic modifications to reduce background noise including installation of carpet, covering desk and chair legs with tennis balls, drapes over expansive windows and acoustic ceiling tiles; (P22, see Hanifan).

Ms. Karmon also noted that Student benefits from using an ASL interpreter to provide visual support to augment spoken language and as such continued access to and use of sign language was recommended. Student however would have difficulty using an ASL interpreter because he had no direct instruction in the syntax and grammar of ASL.

Ms. Karmon after found that Malden’s proposed teacher (Ms. Luich) had knowledge and expertise in hearing loss and was able to demonstrate skills in sign language. She also found that experienced personnel was available at Malden to provide consultation for the modifications that Student required. She recommended that teachers in the mainstream environment receive training at the beginning of the year and at midyear to learn about the implications of hearing loss, the kinds of accommodations and strategies that should be used within and educational setting and the modifications necessary to teaching style and classroom activities to meet the needs of a hard of hearing student (P22).21 Lastly, Ms. Karmon noted that Student, due to his frequent moves has not been given the opportunity to establish relationships with teachers and peers and that therefore, determining an appropriate placement that offers these educational components should not only be considered for Student’s current school year but also considered for subsequent school years’ and should include information from Guardian and from those who have worked daily with Student (P22).

46. The TEAM subsequently reconvened and developed an IEP amendment for March –June 2002 (S3, Luich). Malden recommended that special education instruction occur in Ms. Luich’s class. Although Ms. Luich was new to the Malden Public Schools that year and was not fluent in ASL, she had seven years experience working as a certified special education teacher using sign language for nonverbal students and had good vocabulary and good, albeit slow, conversational skills in ASL (P65, Luich). She is continuing to develop these ASL skills through continuing course work at the Northern Essex Community College (Luich). Ms. Luich has a hearing impaired son and used pidgin sign language with him to help him learn spoken and written language (Luich). Malden also felt that Ms. Luich would be an appropriate teacher for Student because when shown a redacted copy of Student’s audiogram and asked how old student was correctly predicted that Student may not want to use his hearing aids or FM trainer (Luich). Ms. Luich is also hearing impaired. She did not however share the information about her hearing impairment with Guardian at the TEAM meeting (Luich, see Papenfus).22

Ms. Luich would be responsible for providing case management, academic support in and out of the mainstream and would oversee Student’s daily activities and build an academic schedule with peers in the mainstream classes (Luich). Student would also have been paired with up to23 six students in Ms. Luich’s Individual Management (IM) resource room (P66). However during reading arts and language, Student would receive 1:1 instruction from Ms. Luich (Luich). Malden’s IM resource room description states that students in the program have significant behavioral or emotional disabilities…including attention difficulties, lack of impulse control and aggression (P6). All these students have, like Student, average cognitive ability (P66). Many of these students also had deficits in vocabulary and reading comprehension and some, like Student, have PTSD and other emotional issues requiring counseling once per week; see (P66, Luich). Three of these students have artistic abilities and early traumatic backgrounds. One of these students is also being raised by a guardian (P66). Many of the students knew Student and liked him and were looking forward to having him in class (Luich). Many of the students grouped with Student in his inclusion classes require, like Student, visual cues, frequent feedback, graphic organizers, modeling, repetition and clarification of concepts; see (P66). The classroom contains three computers and an overhead projector and like the other classes at Salemwood contain televisions with closed-captioned access (Luich, see P8). All of Ms. Luich’s students had (and will have) homework and behavioral incentive programs and other social/emotional and behavioral supports in the classroom (Luich, see also P22). These incentives include participating in Y activities and going out for food and a movie (Luich).

47. The March-June 2002 IEP added an extra thirty five minute counseling session per week and fifteen minutes of consultation per month to address emotional issues; compare (S5, S3). Academic support in science and math was also increased from four periods to daily support in each subject; Id. Student would also continue to receive two periods (90 minutes) of daily special education instruction in reading/language arts and one period of daily social studies instruction. This IEP also added the following accommodations: use of sign language support, written supplementation of due dates, assignments and important dates on the board and/or in Student’s assignment book, increased processing and production time, continued use of the FM system and the use of tennis balls to improve acoustic parameters; compare (P5, P3, see Luich, Hanifan). The carpeting, drapes and ear level FM technology recommended by Ms. Karmon were not included in the IEP; compare (P22, P27, S3). Guardian rejected the IEP (Guardian).

48. Student remained at EDCO. He was moved to inclusion English during the third quarter of his sixth grade year. Student enjoyed the competitive environment and challenging work and displayed good effort in class, completing most of his homework assignments (P42, P41). His English grade improved from a C- to a B-. Student however did not receive his weekly group counseling because of this schedule change (P42). Student’s inclusion science improved from a C to a B and his grades in his self contained social studies class went from a B to an A- (P41).24 He did continue in individual therapy discussing issues relating to his cultural identity and his identity as a hearing impaired person, such as issues regarding the refusal to wear two hearing aids because of not wanting to appear too disabled in front of his hearing peers (P42).

49. Student returned to EDCO for 7 th grade. He was integrated for all his basic courses in 7 th grade with an interpreter and was pulled out for resource rooms for academic subjects, counseling and speech and language therapy, sharing some of his classes with his EDCO peers25 (02-03 SY) (Mulligan, see (P37, P49). He continued to do well in gym, art and language therapy.26 Student was paired with another seventh grade boy during counseling. At the beginning of the term Student asked the counselor to interpret for him but as the school year progressed used both sign language and verbal English. Student made good use of the pair counseling discussing issues regarding human development and sexuality, sports and street gangs. In group counseling however, it was a challenge to have every member of the group understand and be understood and to have a consensus about what to talk about because of mixed gender and each group member having a preferred mode of communication ranging from oral, to limited signs, to fluent ASL (P39).

50. In academics Student received a B in math at 1 st quarter midterm (P39). Student’s English teacher noted that Student displayed excellent conduct and a good attitude in class and good quality class work. She also noted however that Student only displayed fair participation and attention in class (P39). Both his English and social studies teacher noted that Student had weak reading comprehension skills. The English teacher commented that Student must work harder and read more carefully in order to improve his skills (P39). Student received a C- in science because he was often late to class due to Guardian’s difficulty getting him to school on time, and because of missed homework assignments and his below average (fair) peer interactions and participation in class (Guardian, P39).

51. Malden reconvened the TEAM on December 17, 2002 (P6). Malden received information from Robin Luich, Guardian, Mother, the Director of EDCO and one of Student’s teachers at Day (P6).27 The proposed IEP added five periods of academic support in science and math in Ms. Luich’s resource room. Student would also continue to receive two periods of daily language arts support from Ms. Luich. He would be grouped with some of the same peers from 6 th grade; compare (P66, P67). The academic support in Student’s science and math would be reduced five total sessions to one session per week (2 total sessions) in each subject; compare (S3, P6). The IEP also specified that Malden also would employ a consultant with expertise in working with hearing impaired students, would continue to use closed captioning for all TV and movies shown on Student’s grade level and would, during assemblies, provide Student with a certified interpreter; see (P6). The rest of the IEP remained essentially unchanged; compare (S3, P6).28 Guardian rejected the IEP on January 9, 2003 because she believed that the EDCO program was necessary to provide FAPE for Student (P5, P6, Guardian).

52. Dr. Michael Harvey evaluated Student on January 7, 2003 and drafted a report on January 14, 2003 (S10). Dr. Harvey has a doctorate in psychology, has a private practice specializing in deafness and hearing loss and extensive experience as a consultant, teacher and evaluator for deaf and hard of hearing persons (P72, S11, Harvey). Although his online resume in March 2003 listed current consultation experience at EDCO, Dr. Harvey’s consultation experience at EDCO occurred between March 1982-June 1999 compare (P72, S11). Dr. Harvey does evaluate EDCO students in his private practice and is friendly with Dr. Mulligan, socializing with him at least yearly (Harvey).

Dr. Harvey reviewed former evaluations, EDCO’s IEP and Malden’s proposed IEP for 6 th grade, interviewed Student and Guardian, conducted projective testing, talked to Student’s school therapist at EDCO and observed the EDCO program on January 14, 2003. He did not observe Malden’s proposed program or speak to anyone from Malden (Harvey).

Dr. Harvey conducted the interview using simultaneous voice and sign in English word order (pidgin sign language) per Student’s request and Student’s statement that “also signing” [while speaking] helps me understand better”.29

Student communicated orally with intelligible speech and communication was predominately clear and unhampered except for occasional explanation of concepts. When asked how he felt about EDCO he responded that “it’s okay, but hard because I get a lot of homework” and did not like the hour commute from home. When asked to list the pros and cons, he reported the following “pros”, “ I like having an interpreter as backup so that I can understand the teacher; I like having an interpreter when other kids need them too; “I like hanging out with other hard of hearing kids; It’s fun, we have parties for kids’ birthdays” and “the teachers are nice”. He listed the “cons” as “too many projects and homework” and “the FM system” which he said he did not want to wear it in front of other people and did not need because he had an interpreter (S10, Harvey). Student informed Dr. Harvey that he had hearing, hard of hearing and deaf friends at school. He also told him that when he socializes with hearing students and adults he sometimes pretends to understand the meaning of jokes. When asked about the Salemwood School, Student reported that he would prefer to go there as “I would get more sleep if I go to Salemwood”; “they have less homework” and “”I would walk to school with friends”. When asked to rate both schools he gave each school a “6”; Id. . Projective testing indicated mild emotional constriction consistent with PTSD (S10).

53. Dr. Harvey observed Student during his 45 minute biology class (Harvey, S10). The room was not carpeted due to fire hazards associated with science experiments (S10). Student was not wearing his hearing aids, a typical pattern for Student at EDCO ( see S10, Mulligan). Student was seated in the front row next to two deaf peers. A sign language interpreter interpreted all communications using some pidgin sign language with ASL structures. Student watched the teacher then watched the interpreter to ensure his understanding. Student participated well in the classroom discussion and was engaged in the group task signing to his deaf peers and vocalizing and signing with his hearing peer (P10, see also Mulligan).

54. Dr. Harvey concluded that due to Student’s hearing loss, his reliance and his preference for sign language, and his language deficits, Student requires a comprehensive educational program for deaf and hard of hearing students. He also concluded that Student’s current placement was appropriate and that a change to an academic environment without appropriate accommodations and a hard of hearing peer group would be inappropriate and inadequate because Student would be likely to feign understanding of conversations in a predominately hearing setting and miss the incidental learning that occurs in discussion because of poor acoustics. This would cause further academic delays, feelings of shame and damage to Student’s self esteem (Harvey, P10). He also concluded that teasing and ridicule would more likely occur in a predominately hearing setting where he would be the only hearing impaired student and as the only hearing impaired student, Student would likely feel different and alienated from others (S10, Harvey). He noted that hard of hearing adolescents often experience a sense of alienation from the hearing peer group in unstructured group situations or in places that are noisy or poorly lit because they can not fully hear what is being said but that in an environment in which there is visual communication in conjunction with oral communication the potential for full participation and understanding is greatly augmented (S10).

Dr. Harvey noted however that hearing impaired adolescents can also experience alienation from a deaf peer group that aspire to “D”eaf cultural norms. Some of the cultural assumptions are that being “D”eaf is not seen as a disability or as an oppressed minority. Rather, there is a Deaf culture to be proud of and embraced with its own language (ASL), traditions, art forms, customs and sense of community and experiences; see (Harvey, Demiany, Mangie, Luich, S10). The sign that deaf people use to signify “hearing impaired” translates to think “think like hearing”. This is a derogatory term (Harvey, Demiany). Thus hearing impaired persons, especially adolescents, are often “stuck between two worlds” which has negative effects on one’s feelings of belonging and being connected and affects one’s self esteem (Harvey, S10). Dr. Harvey opined that Student may be particularly vulnerable to this “limbo” experience, given his thwarted and ambiguous relationships with three sets of parental figures, as well as, perhaps, issues of cultural affiliation, and therefore requires consistent contact with similar peers (S10). Student’s involvement in groups of other hearing impaired students would be beneficial for him and do exist, but are hard to find due to the low incidence of hearing impairment and the different needs of the hearing impaired population ( see Harvey, Demiany).

55. Malden reconvened the TEAM on February 4, 2003 and prepared an amendment to the IEP ending on December 17, 2003 (S1). This IEP indicated that they had employed an educational audiologist to work/consult with the general education and special education teachers, paraprofessionals, and administrators working with Student (S10). The IEP also expanded the acoustic modifications to include all acoustical damping materials. Malden also substituted the whole language reading program with a specialized multisensory reading program and included fifteen detailed suggestions for implementation; see P1, compare (P1, P2). Academic support in inclusion math and science was also increased from two to fifteen sessions weekly; compare (S1, S2). Guardian rejected the IEP (Guardian).

56. On February 7, 2003 Dr. Josef Wexler conducted a psychological evaluation at the Day Middle School (S6). Dr. Wexler does not specialize in deafness (Wexler, see S7). He does have about thirty years experience in psychology, with twenty-three years in private practice, and has been a school psychologist with the Malden Public Schools since 1995 (S7). Dr. Wexler interviewed and observed Student, reviewed the prior school and independent evaluations and the audiology reports. He administered the Wechsler Individual Achievement Test-2 nd Edition (WIAT-II) in math and reading (P6, Wexler). Dr. Wexler picked the WIAT-II because the it would show how Student worked and reached solutions and would also show whether his standing relative to his peers had changed since he took the WIAT in 2000 (Wexler, S6)30 Although Dr. Wexler considered using a test normed on deaf and hard of hearing persons (Stanford 9 for the Deaf and Hard of Hearing) he decided not to use it because of the limitations of that test (S6, Wexler).31

Dr. Wexler originally planned to assess Student without an interpreter so that he could compare his performance to results Student had achieved in 2000 (Wexler, S6).32 Dr. Mulligan told Dr. Wexler that giving this test to a deaf student without an interpreter would be invalid and would turn the assessment into a lip reading test. He also told Dr. Wexler that his mustache would make it more difficult for Student to read his lips (S6). When Dr. Wexler responded that Student was not deaf, Dr. Mulligan said the same applied for hearing loss. Dr. Mulligan was also uncomfortable having Student perform the WIAT-II Numerical Operations subtest without interpretation because deaf students often have trouble lining up and doing math problems without interpretive support. The interpreter believed that she would be abandoning Student because he would not tell her if he did not understand something. After these discussions, Dr. Wexler decided to test Student with interpretation and that he would pay close attention to how Student was using that support (Wexler, S6).

57. Dr. Wexler then began assessing Student. Student wore both of his digital hearing aids but did not wear his FM system, telling Dr. Wexler that he didn’t like it and didn’t need it because his hearing aids were working fine (S6). The room was carpeted. A ventilation ceiling fan was running. Student told Dr. Wexler that the fan did not bother him. Dr. Wexler told Student that if he did not understand something to let him know or ask questions (S6).

Student engaged easily with Dr. Wexler, answering questions with intelligible speech (S6). He told Dr. Wexler that he likes to play football and wanted to go to college to become an electrical engineer. When asked to describe himself as a friend would do, Student replied: ‘[Student] he’s fourteen. He likes to play rough. He likes to eat. He likes to dress nice. He likes school. He likes playing rough sports. He likes to tease. He likes to make jokes.33 …Oh he is hard of hearing. He signs. He lives in Malden. He likes Math, social studies, doesn’t like science (too much homework). He likes Tech Ed, Gym and a little bit of English” (S6).

When asked about his hearing loss, Student told Dr. Wexler that he understands low pitched communication more than high pitched and that when he doesn’t understand something he asks people to talk louder or to speak to him face to face. Student also reported that sometimes he just lets things go depending on how important he thinks the information is or whether he wants to make the effort (S6).

When asked if any of his family or friends sign or need to sign Student said no, except for some friends at EDCO. When asked how having an interpreter helped him, Student replied that if he missed a word in class or did not understand something, having another person signing to him helped. When asked to compare the usefulness of having a second teacher in the class who could answer questions or clarify the issues with having an interpreter Student said that it would be the same amount of help (Wexler, S6). The interpreter signed “question” and said she asked Student if he understood the question. Student shook his head no. Dr. Wexler interpreted this gesture as saying he did not have a question but felt that interpreter interpreted this as meaning that Student did not understand the question.. Dr. Wexler repeated the question and Student reiterated “No difference”. Dr. Wexler repeated what he heard to Student so that he could record his observations accurately. The interpreter responded “Whatever your perception is” (S6, Wexler).34

As testing went on, Student used the interpreter less and less for support, looking at Dr. Wexler or answering questions correctly even when looking at test materials (Wexler, S6). When Student needed to he asked Dr. Wexler to repeat a question or a statement, clarify information or explain the meaning of a word (S6).

58. Student’s overall reading performance was generally average or low average compared to his hearing peers. In math, Student performed in high average range or average ranges working quickly and accurately on the Numerical Operations subtest. In mathematical reasoning, Student scored in the average or low average range35 ; however, Student appeared to fatigue toward the end of the math reasoning test, working more quickly and displaying minor errors (S6).36

59. When compared with Student’s performance in 2000, Student showed significant improvement in Numerical Operations and showed essentially the same performance in word reading, reading comprehension and math reasoning; scores that were significantly lower than expected given Student’s average (106) performance WISC-III scores in 2000 (S6). After reviewing the evaluations and consultations, Dr. Wexler concluded that Student had been making academic progress in both the Salemwood School in Malden and the EDCO program, but that Student’s reading skills had not developed significantly since his last evaluation. Dr. Wexler gave fifteen specific recommendations to improve vocabulary, syntax and reading comprehension; see (S6).37

Dr. Wexler agreed with Dr. Harvey that Student needed to address his hearing loss in counseling and that Student needs contact with other hearing impaired students but that Student did not require a program like EDCO in order to make effective academic progress (Wexler, P6). Rather, Student’s program needs to provide interventions and support that would strengthen Student’s ability to function in the hearing world so that he can develop and have as broad an array of life options as possible (Wexler, S6, see also Luich). He also opined that an effective program for Student needs to address his issues regarding ethnic and cultural affiliation, history of abuse and separation/loss of parents. Id.

60. During the second quarter at EDCO Student’s academic performance and behavior declined; compare (P38, P39). Student was out for a week and was not able to complete homework assignments. His science teacher noted that Student has fallen behind and showed no or little interest in achieving what he was capable of doing. His social studies teacher commented: “I am very concerned about [Student]. He is clearly losing more of his hearing but is not watching the interpreters for help. If this pattern continues his grade will fall drastically” (P38).

61. EDCO spoke to Dr. Demiany about Student’s possible additional hearing loss (Demiany, P39). EDCO noted that Student seemed to be doing more lipreading and signing during sessions which may signify an additional loss of hearing; Id. Student received an audiological evaluation in January 2003. His hearing remained unchanged from November 22, 2002 and previous hearing tests; see (P18, P19, P20, P28, P32).

62. During this time period Ms. Papenfus and Ms. Hanifan viewed Student at his program at EDCO. This was the third38 time they had viewed the program (Papenfus). Ms. Papenfus and Ms. Hanifan observed Student in his counseling group. In counseling, Student was paired with two severely hearing impaired students. Student did not use many signs but was comfortable in the group (Papenfus).

Ms. Papenfus and Ms. Hanifan also observed Student in his math and social studies classes and in an assembly. During classes, Student was seated in the front with two of his EDCO peers and two hearing peers in the front near the interpreter (Papenfus). The social studies teacher had a loud clear voice and presented an excellent lesson. Student raised his hand to participate, answered in spoken English and rarely looked at the interpreter; Id. .

In math however, the overhead projector (and accompanying motor) and teacher were directly behind Student The teacher presented an excellent lesson but had a soft voice The door was open and students were passing by in the hallway (Papenfus). As a result, Student used the interpreter. The teacher did not see Student from where she was standing and did not know that Student was volunteering an answer until the interpreter brought it to her attention (Papenfus). The math teacher often told jokes or stories and although interpreted, only the hearing kids laughed and appeared to understand the nuances of the exchanges (Papenfus).

In the assembly, Student also sat with his EDCO peers in the front with an interpreter. The auditorium had stadium seating with no visual obstructions. Malden therefore felt that sitting together with only hearing impaired peers was unnecessarily stigmatizing to Student, especially since they observed him interacting with hearing peers at lunch and at gym (Papenfus).

63. During spring 2003 Malden arranged for an inservice training from Kristen Karmon regarding hearing loss (Luich). It also arranged (on March 7, 2003) for Kym Myer, a certified teacher and audiologist for the Outreach Partnership Program of the Learning Center for Deaf Children to provide consultation to Malden (Hanifan, S8). Ms. Myer toured the 7 th grade classrooms and interviewed Robin Luich, Louise London and Anne Hanifan. She did not view Student because he was attending EDCO. Based on her observations, Ms. Myer made recommendations that were a beginning point for a hard of hearing student to access the curriculum at Salemwood. Because Ms. Myers could not observe Student at Salemwood, her recommendations were not indicative of all the recommendations and accommodations that Student may need (S8).

Ms. Myer noted that it was important for any hard-of-hearing student to be able to see faces of speakers at all times, including other student’s, in order to lipread. She also noted that lipreading will become more difficult as content becomes more complex and/or when information is new or unfamiliar. She also noted that children with hearing loss may have gaps in vocabulary and world knowledge because their hearing loss has prevented or impaired complete access to language and incidental learning. Moreover, many hard-of-hearing children are fatigued at the end of a school day from their efforts to absorb information. In light of these issues, proper classroom acoustics, peer relationships and social language were critical for students with hearing loss (S8, see also Harvey, Guardian).

62. Ms Myers gave Malden twenty-seven recommendations39 including:

· use of an individual FM system however, if personal FM system is contraindicated, a sound field FM system in all Student’s academic classrooms (S8, see also P22, P27);

· support from a counselor with knowledge about hearing loss issues to address resistance to amplification;

· teacher repetition of all Student’s answers, both correct and incorrect, with verbal and visual identification of Student’s to aid in incidental learning;

· use of an overhead and/or circular seating position to allow Student to see the instructor and other students;

· preteaching and review of new vocabulary and concepts to allow for easier lipreading;

· teacher request for Student to summarize or paraphrase questions/instructions instead of asking Student “Did you hear me?”;

· use of natural gestures;

· enabling Student to see his class by seating him with his back to the window and closing blinds to reduce glare:

· exploring alternative options for notetaking including using teacher and peer notes;

· homework, school announcements and assignments in written form;

· use of close captioned video;

· pairing of audio with written text;

· carpeting all academic classrooms to reduce reverberation and closing doors to minimize noise;

· facilitating a group for social language (“i.e., lunch-bunch”);

· providing sign language interpretation or CART (Communication Access Real Time) for large group presentations;

· ongoing consultation, observation and inservice from an educational audiologist or educator knowledgeable about hearing loss;

63. On April 11, 2003 Student was suspended from EDCO because he was caught stealing food from a cafeteria vending machine (P51). Student had two prior episodes of stealing. EDCO referred the matter to the Newton youth officer. Dr. Mulligan did not believe that a behavior plan was necessary for Student because he viewed Student as a typical kid that gets in trouble at times (Mulligan).

64. Guardian was also continuing to experience conflict with Student over various family issues including adhering to Guardian’s requests and issues regarding the wearing his hearing aids (Guardian). Guardian enrolled Student in an anger management group of five or six kids, some of whom attend the Salemwood School (Guardian, Dmytryk, Demiany). Although none of the other students were hearing impaired and no signing was used, Student was able to utilize this group well and generalize what he has learned (Demiany, Guardian).

Student has also benefited from other activities including therapy with Dr. Demiany and attending ASL interpreted church services with some of his EDCO friends (Guardian). Guardian believes that Student’s out of classroom bullying, defiance and other troublesome behavior at school is lessening partly as a result of EDCO’s challenging academic program, total communication system, and strict insistence on personal accountability for unacceptable actions (P80).

65. EDCO’s third quarter progress reports indicate that Student did not complete homework regularly and that he talked and fooled around too much in all of his academic classes (S50). His grades dropped in Art and English and 3 rd quarter academic grades (except math) reflected inconsistent or insufficient effort (P69). Guardian believed these progress reports reflected Student’s confusion and about where he would be going to school (Guardian).

In pair counseling Student to have a supportive, though competitive, relationship. In weekly group counseling, Student dominated the group and tended to be tardy. Although the group had become more cohesive and supportive of each other as the year progressed, the students commonly engaged in disrespectful behavior including secret signing and multiple conversations; see (P50). Group counseling, like pair counseling has focused on dating relationships, parent relationships and the social consequences of substance abuse (P50).

66. Dr. Mulligan administered Student updated Stanford 9 testing on June 5, 6 and 9, 2003 for purposes of this hearing (Mulligan, see S55)40 . Dr. Mulligan used the Intermediate 2 level of the test which is designed to assess students who are in the middle of 5 th grade (5.5 ) to the middle of sixth grade (6.5) (P77 Table 2.5, S57, Wexler). Test guidelines recommend administering the test level that corresponds to the curriculum content of the student’s grade (S58). At the time of testing Student was in the ninth month of 7 th grade (7.9); Id. Therefore, Dr. Mulligan should have administered the Advanced 1 level of the test (S58, P77 Table 2.5, S57, Wexler). Because deaf and hard of hearing students may be older than their hearing peers, evaluators should administer a screening pretest to establish the appropriate test level (P76, P77, Mulligan, S58). The selected test level is one at which a student is expected to answer between 40-70% of the items correctly to ensure that the student will score within the measurable range (P77). Students scoring at or above 85% should be given a higher test level (P77). Failure to do so could result in scores outside the measurable range of the test, making the test invalid to assess Student’s progress on the content of the curriculum for grades 6.6 to 7.9 (S58, Wexler). The test publishers (Harcourt Brace) indicate that testing could be done out of level for Student if screening showed that this would be appropriate; however test administration should be limited to one level lower (Intermediate Level 3) (S58).

67. Dr. Mulligan did not rescreen Student prior to giving him the Stanford 9 because he had screened him before administering the previous Stanford 9 in November 2001 and he wanted to compare his current performance with his previous testing (P76, Mulligan). Student advanced from the 79 th to the 91 st percentile in reading vocabulary and from the 84 th to the 87 th percentile in reading comprehension; compare (P7, S55). He dropped from the 96 th percentile to the 89 th percentile in mathematic problem solving and rose from the 81 st to the 97 th percentile in math procedures; Id. Dr. Mulligan did not readminister the spelling, language, study skills, science, social studies and listening subtests; Id.

68. Student ended the year at EDCO with A’s in P.E. and Tech Ed, a B+ in Social Studies, a B- in Pre-algebra and Art History/Studio Art, a C in English and C- in Science (P75). Progress reports for the 4 th quarter were not given as per EDCO policy (Mulligan). EDCO interpreters would share information with the teacher about the students the following year (Mulligan). Guardian and Dr. Demiany however feel that Student made progress because he was able to relay information about what he had learned (Demiany, Guardian).

69. Guardian would like Student to continue at EDCO for eighth grade and continue on with the EDCO program at Newton North the following year (Guardian). Student has talked about attending Newton North because many of his EDCO friends will be attending next year (Guardian, Demiany).

70. The proposed plan for Student if he returns to Salemwood for eighth grade would be to continue in the program that is proposed in the current IEP. Malden staff are concerned that Student has lost some expressive language skills because he is hearing English while seeing ASL.41 . Therefore if needed, they may need to give extra support in language arts ( see Luich, Mangie).

71. Malden also has hired an educational audiologist and is prepared to implement her recommendations (Papenfus, Dmytryk). The carpet installation will be completed this summer. A new sound field system that does not require Student to wear anything has recently been purchased (S60). Malden’s accommodations will not only benefit Student but will be helpful for other students with disabilities that are in Student’s classes (Papenfus, Luich). Malden is willing to implement an after-school group for Student and other hearing impaired adolescents at another middle school. This group would be co-lead by Ms. Dmytryk and Ms. Mangie, a new school adjustment counselor who has been signing for ten years (Mangie). Ms. Mangie will also be available to co-lead Student’s counseling in school and sign if Student is comfortable having her do so (Mangie, Dmytryk). Student would also be able to participate in extracurricular sports activities, teams and clubs as he is at EDCO. In Malden, Student could also be part of a new program called the Citizen’s School which pairs students with mentors in different professions. The program is only available in Boston, Malden and Worcester (Dmytryk).


The Parties agree that Student is hearing impaired with associated speech and language deficits. The Parties also agree that Student has PTSD and behavior issues that interfere with his learning. At issue here is whether Malden provided Student with a comparable program in 5 th grade when he moved from Dayton, Ohio. Also at issue is whether Malden, during 5 th grade, 6 th and 7 th grades, provided or would have provided, Student with programs, pursuant to the applicable standard, (maximum feasible benefit for those IEPs developed before January 2002, FAPE for the IEPs thereafter) that were consistent with the recommendations of its own and/or the independent evaluations. Also at issue is whether Malden committed procedural violations that denied Student a FAPE, thus entitling Student to compensatory education.

Malden proposed an IEP for Student for June 2001-June 2002. At that time Malden was required to create an IEP that would maximize Student’s potential in the least restrictive environment. The other IEPs developed for periods after January 2002 required Malden to provide FAPE according to the federal standard. Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).

In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use of accommodations and specialized services; see 20 U.S.C. 1412 (5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (18). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.

Finally, FAPE also entails complying with the procedural requirements of the IDEA; a school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA.”).

In the instant case, Guardian unilaterally placed Student at EDCO in August 2001 and has kept Student there for the 2002-2003 school year. Guardian may be reimbursed for the costs of providing special education and related services for Student for both years if she can demonstrate by a preponderance of the evidence that Malden’s program did not meet the maximum feasible standard or federal FAPE standard in the applicable years and that the program and services offered at EDCO are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985).

A parent’s unilateral placement can be appropriate even if it does not meet all the standards imposed by the state; see Florence County School District Four v. Carter , 510 US 7, 13 (1993); A parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998); see also Florence County School District Four v. Carter , 510 US 7, 13 (1993); Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).

After review of the documents and testimony presented in this matter, I find that Malden committed procedural violations that denied Student a FAPE. I also find that its IEPs did not meet the maximum feasible or the FAPE standard for Student but that Malden’s current IEP, with modifications, can provide Student a FAPE in the LRE. Finally, I find that the EDCO program meets the standards set by Matthew J. and as such Guardian should be reimbursed her costs associated with her unilateral placement of Student at EDCO and for the FM system she purchased. My analysis follows:

A. Procedural Issues / 5 th Grade (00-01SY)

The record shows that when Student moved to Malden in 5 th grade, Malden did not implement his formerly accepted IEP. The applicable regulations at the time stated that “Where a child…has moved from another city or town in the Commonwealth or from outside the Commonwealth and such child was in a special education program provided by the school committee of the former community of residence, the Administrator of Special Education, upon agreement with the parents, shall see to it that the child’s IEP from the former community of residence is implemented immediately in a comparable placement:; 603 C.M.R 28.33242 .

The IEP from Dayton called for a substantially separate program for hearing impaired students taught by a teacher of the deaf and hearing impaired, with speech/language therapy for one thirty minute session per week, an audiology consult twice a year and audiology direct services four times per year. The audiology services and consultation were not implemented.

The Malden program did provide a substantially separate setting for academics with an opportunity for inclusion in math and nonacademic classes, provided Student with a behavior plan and exceeded the former IEP recommendation for speech therapy services. The Dayton IEP and reevaluation however indicated that Student receive services in a program for the hearing impaired taught by a teacher of the deaf and hearing impaired. Malden also had information that Student’s results on auditory comprehension testing showed that his average performance was about one standard deviation better than his peers with moderately severe hearing loss and that his performance was most like students enrolled in a regular program. With this information, Malden had an obligation to contact Dayton to determine if they were implementing a comparable program. Malden phoned Dayton several times but did not follow up in writing or otherwise do anything to ensure that they were receiving Student’s complete school record. When Malden could not or did not receive adequate information about Student’s former program in Dayton, it should have at that time consulted with a person with expertise in educating hearing impaired children so that it could determine if it could implement Student’s former IEP in a comparable setting.

Malden’s conducting of its own evaluations was proper. Malden however, was required to evaluate Student in all areas of suspected disability; see e.g. 34 C.F.R. s. 300.532(2)(g). Student had a known hearing impairment, communication issues associated with hearing loss and behavior issues. Malden did conduct comprehensive psychological and speech and language evaluations. It did not however have a qualified individual assess Student’s ability to access auditory information. Malden was not obligated to repeat the audiological testing done in Dayton in April 2000 if they chose to substitute that testing for their own. The evidence however, shows that Malden neither conducted its own audiological testing or considered former testing from Dayton. The initial IEP of November 2000, does not reference any consideration of former testing. Nor does it incorporate many of the audiological objectives in the Dayton IEP (i.e., participation in hearing monitoring, participation in informational counseling regarding hearing issues, participation in daily monitoring of sensory device for hearing); compare (P15, P12). In addition, former testing indicated that Student’s performance in the classroom will be affected by noise level, distance from the teacher, visibility for lipreading, familiarity with the topic and functioning of classroom amplification (P15). Malden’s speech/language evaluation and the SLP recommendations addressed the visual and educational accommodations needed but did not address the acoustical accommodations needed. Nor is this SLP, although very competent, an expert in acoustical considerations. As such Malden should have conducted its own evaluation in this area.

The record shows that Student’s initial 5 th grade placement in Mr. Aquino’s classroom was based on Student’s need for academic support and behavioral issues. Malden, when it convened in November 2000, noted Student’s academic strengths and his behavior and recommended inclusion science, continued inclusion in math, and inclusion in social studies and language arts in January 2001. Guardian rejected this. This IEP incorporated the academic information available to the TEAM; however it did not maximize Student’s potential because the absence of the acoustic/audiological objectives and accommodations denied Student an appropriate opportunity to pick up incidental information from his peers and otherwise access his educational program.

Malden also knew from their former testing, their own observations and the 5 th grade audiology testing that the FM system may not have been working properly. Malden charged the FM system but did not otherwise ascertain if the system was functional. The FM system and hearing aids are equipment that are used to increase, maintain and/or improve the functional capabilities of a child with a hearing impairment. As such, this equipment is an assistive technology device; see 34 C.F.R. 300.5. Student’s IEP indicated that he required an FM system in school. Student was not able to fully access auditory information at Malden without a proper working FM system. Malden was required to ascertain whether the system was working and repair or replace it if it was not. Guardian purchased an FM system for Student. It is noted that the FM system was purchased while Student was at EDCO and that EDCO does not require Student to use it. Student’s IEP indicated that he required a working FM system to access his educational program at Malden. EDCO’s failure to use the system goes to the issue of the appropriateness of EDCO and do not release Malden from its obligations under the IDEA. As such, if the educational audiologist recommends that Student continue wearing an FM system, Malden will reimburse Guardian for the cost of the system she purchased and will, with consultation from the educational audiologist, take steps to ensure that it is functioning properly.

The record also shows that Malden did not consider all the information presented by the independent evaluations. Malden considered Dr. Demiany’s recommendations but did not, when it reconvened in May 2001, consider Kristen Karmon’s recommendations. Those recommendations included recommendations for acoustically treating the classrooms with drapes and carpeting, ear-level FM technology to lessen the emotional impact associated with Student’s wearing of a FM trainer, the use of visual aids and signs to augment spoken language, and an opportunity for interaction with other hard of hearing students. If the TEAM had considered Ms. Karmon’s recommendations it could have developed an IEP that addressed Dr. Demiany’s concerns about Student not accessing incidental information.43 .

B. Malden’s proposed 6th, 7 th and 8 th grade programs

1. 6 th grade (IEP for March-June 2002)

The record shows that Malden’s proposed IEPs for an inclusion program, with academic support in Ms. Luich’s Individual Management resource room, would have, and can prospectively, meet many of Student’s individual special needs. Student would receive the visual cues he requires in his inclusion classes, as well as individual academic support with Ms. Luich for language arts and a homework and behavior incentive program. Student would be grouped with students with similar cognitive ability and emotional concerns in his special education classes. He would also receive counseling and would in 6 th grade, have been paired with another hearing impaired student. Ms. Luich would have been (and will be) a good role model for Student. The IEP however did not include the acoustic accommodations recommended by Ms. Karmon and therefore Student would not be able to access many parts of the program, including the incidental learning obtained from other students. The IEP in 6 th grade offered counseling with another hearing impaired peer but did not offer Student the opportunity to adequately address Student’s issues with wearing his FM trainer and his other emotional issues associated with his hearing loss. This was because the school counselor, although well qualified to address other emotional issues, does not have expertise regarding the emotional issues resulting from hearing impairment and did, as recommended by Ms. Karmon, receive consultation from professionals knowledgeable in that area. Student’s program as configured also did not give Student the opportunity to interact with other hard of hearing peers with similar social-emotional concerns.

2. 7 th grade

Student did not have an IEP for the period expanding from June 2002-December 2002.44 The IEP developed in December 2002 indicated that Malden would employ a consultant with expertise in working with hearing impaired students, would continue to use closed captioning for all TV and movies shown on Student’s grade level and would, during assemblies, provide Student with a certified interpreter; see (P6). In addition Malden added consultation from an educational audiologist and expanded the acoustic modifications when the TEAM reconvened in February 2003 to consider Dr. Harvey’s evaluation. Malden also did consult with Kristen Karmon. However, Malden was not in a position to fully implement the proposed program because the carpeting, drapes and ear level FM system were not purchased until the late spring/early summer of 2003 and could not have been installed in a timely manner. Nor did Malden address until Hearing, services to address Ms. Karmon’s, Dr. Demiany’s and Dr. Harvey’s concerns about access to other peers with hearing impairment.

3. Prospective issues (8 th grade)

The record shows however that Malden can implement an appropriate program for Student for the 8 th grade. Dr. Harvey has concluded that due to Student’s hearing loss, his reliance and preference for sign language and his language deficits, Student requires a comprehensive program for deaf and hard of hearing students. This Hearing Officer has carefully considered Dr. Harvey’s and Dr. Demiany’s opinions and agrees that a return to a placement without appropriate accommodations would be inappropriate because Student would be likely to feign understanding of conversations, would miss the incidental learning that occurs in discussion and as a result would experience academic delays and damage to his self esteem. Malden’s program however now incorporates Kristen Karmon’s and Kym Myers’ recommendations to improve acoustics and aid in incidental learning. Malden has also purchased and installed the equipment and hired the consultants needed to implement the program. The program offers services to address language and articulation deficits and behavior and emotional issues and offers an appropriate peer group in both Student’s inclusion and self contained classes.

Dr. Harvey’s conclusion that Student relies on and prefers sign language is only based upon Student’s request that he sign while speaking. This may not necessarily mean that Student relies on sign or has a preference to sign. The acoustics of Dr. Harvey’s office are unknown. Ms. Luich has credibly testified that Dr. Harvey is hard to lipread. Dr. Demiany has also testified that Student has asked her to sign to see if he can understand the language. The evidence shows, and the Parties agree, that unlike his peers at EDCO, Student’s residual hearing is such that he does not require sign language to express himself or as a primary aid to understand language. Dr. Demiany has referred Student to group counseling for anger management with hearing peers. He has been able to make use of this service. Student has hearing friends and enjoys hearing jokes, music and dancing. Student has repeatedly admitted, and the Parties agree, that Student uses sign language as a visual cue or reinforcement for missed information. Sign language is a wonderful visual aid. It is not however the only visual aid that can be used with Student. The IEP offers signed support as well as other visual cues to assist Student. These include, but are not limited to, ASL interpretation for assemblies, CART, closed captioning, and academic accommodations such as the use of visual aids, hands-on materials, pairing of audio with visual text and room configurations to allow Student to see the instructor and other students better. It also offers acoustic modifications so that Student would not need to rely on visual cues as much.

Dr. Harvey has also opined that Student also requires a program for deaf and hard of hearing students so that he can have regular access to peers who are like him in order to feel that he is okay. This regular access can be accomplished in other ways through opportunities for involvement in groups with other hard of hearing students, continued attendance in the church that Student attends with some of his EDCO friends, continued contact with his friends at EDCO, involvement in deaf community events and pairing with a hearing impaired college student who shares his interest in electrical engineering. Student’s emotional issues concerning his hearing impairment and assertiveness training to tell people that he needs something repeated, can also be addressed though school counseling and in Student’s pragmatics group, with ongoing communication between Malden and Dr. Demiany if agreeable to Guardian. Dr. Demiany, Kristen Karmon and Kym Myers are well connected to resources in the deaf and hard of hearing communities. Ms. Lunch is taking courses at the Gallaudet University Regional Center at Northern Essex Community College and also may be aware of other resources due to her sons and her own hearing impairment. Catherine Mangie also has access to some resources. Malden has credibly indicated a willingness to create or locate appropriate groups and services and is, unlike EDCO, ready to adjust its program if needed. Implementation of the above services can be accomplished by adding the appropriate social work or psychological consultation to the IEP. With this addition, Malden’s IEP will provide a FAPE to Student in the LRE.

4. Reimbursement issues

I find that the EDCO program is not the least restrictive program for Student and that continued placement of Student may not be beneficial to Student because EDCO does not recognize Student’s emotional and behavioral issues and is unwilling to individually address them.45 In addition, EDCO’s blanket philosophy of never recommending integration of any hearing impaired student back into a public school system without a substantial hearing impaired population may not service Student and its reliance on interpreters for reporting 4 th quarter educational information is troublesome. Further, Student may not be encouraged by his deaf peers to speak, act or “think like hearing” which could limit Student’s choices in the future.

Guardian however should be reimbursed for her unilateral placement of Student at EDCO for 6 th and 7 th grade. Student’s 5 th grade program did not provide a FAPE to Student and can not be fully implemented until this school year. Student is hearing impaired. He had been attending a program for the hearing impaired. EDCO is a program for the deaf and hearing impaired. Guardian was reasonable in choosing EDCO when Malden did not provide an appropriate program for Student. Equity dictates that Guardian should recoup the costs of the placement as compensatory education. EDCO also does meet the standards set by Matthew J as a program appropriately responsive to Student’s needs. EDCO’s use of sign language instruction and interpretation provided Student with access to the curriculum including incidental learning. He had an opportunity to interact with hearing and deaf peers. Although EDCO’s June 2003 administration of the Stanford 9 were invalid, this lack of validity does not mean that Student did not make progress. Dr. Wexler’s testing showed that Student obtained Student’s reading skills that had not developed significantly since his last evaluation. His testing also showed however, that Student did make progress at EDCO. Student liked his classes at EDCO, obtained passing grades and was able to relay the information he learned. Therefore reimbursement is warranted.


Guardian shall be reimbursed for her unilateral placement of Student at EDCO program for the 6 th and 7 th grade and shall be reimbursed for the costs of the FM trainer as compensatory education for Malden’s IEPs that did not meet Student’s individual needs. Malden’s February 2003 IEP, with the addition of social work and/or psychological consultation and services, provides FAPE to Student in the LRE and shall constitute Student’s “stay-put” placement. Malden will amend its IEP to include such services.

By the Hearing Officer,

Joan D. Beron

Date: September 8, 2003


Dara is a pseudonym used for confidentiality and classification purposes.


Student’s parents are alive. Guardian has legal guardianship and educational decision making authority and functions as a parent to Student. By request of the School District and agreement of the Parties Guardian Exhibits were marked as Parent’s Exhibits for ease of reference.


Many of the participants in this hearing testified through voice and sign language using both ASL and pidgin sign. Evidence relevant to oral or visual testimony will be noted when necessary.


On January 1, 2002 the regulations that changed the standard from maximum feasible development in the least restrictive environment to a free appropriate public education (FAPE) in the least restrictive environment standard went into effect. The IEPs developed prior to January 1, 2002 will be examined using the maximum feasible standard. Subsequent IEPs will be examined using a FAPE standard.


Guardian is not sure of the exact time frame of each conversation (Guardian).


Student believes he repeated second grade; see (P16).


Key Math results list a grade level of 5.2 in basic concepts, a 5.3 grade level in math operations and a 4.1 grade level in applications. Woodcock-Johnson testing lists a word identification grade level of 3.4, a word attack grade level of 2.8, a 3.3 grade level in word comprehension and a 2.9 grade level in passage comprehension. No further information is available and no one is sure of the conditions surrounding or the validity of the test results; see (P31, Papenfus).


Malden did not need to obtain consent. 603 CMR 23.07(4)(g) allows a school district to release the entire student record of a transferring student to the new school without prior consent, provided that it gives notice that it forwarded the student record to the school the student intends to transfer to.


Some of the misarticulations were substitutions of “d” for the “th” or “z” sounds, “s” for the “st” sound and “sh” for “ch”, inconsistent omissions of “s” or “z” in the medial or final position.


The SLP used the Lindamood Auditory Conceptualization (LAC) Test to test sound discrimination and phonemic awareness and the Listening Test and subtests of the Clinical Evaluation of Language Fundamentals (CELF 3).


At hearing Ms. Papenfus testified that Mr. Aquino’s class had one student with a 70 IQ, two students diagnosed with dyslexia and another student with language and reading difficulties (Papenfus). The class had fourteen students with a teacher and an aide (P27). No further information was presented regarding this class; see Record.


Student’s hearing showed unaided thresholds between 40-60 decibels (db) in ear ear and aided thresholds at the 30-35 db range; see (P28, compare P28, P32).


Student told his SLP that he could hear better through his single hearing aid than through his FM unit.


Guardian picked this evaluator due to her expertise with deaf and hard of hearing students. Both parties submitted this exhibit (P27, S14) and neither party raised concerns about the validity of testing; see Record.


Only Woodcock Johnson Reading Mastery test grade equivalents were noted. Dr. Demiany noted strong WISC-III performance scores and a verbal IQ of 78 attributable to hearing loss and to Student’s history of neglect and multiple school placements (P23).


Guardian’s copy of the IEP also contains her handwritten notes.


Dr. Mulligan testified that he first met Student in August 2001, that Student met staff and students and he was conditionally accepted on that day (Mulligan). He also wrote a letter in February conditionally accepting Student. The testimony and exhibit, absent the date, is more consistent with a February visit.


The EDCO Collaborative services other students in other programs (Mulligan). For purposes of this decision EDCO will refer to the deaf and hard of hearing program.


Five of the 33 EDCO students at the high school are hearing impaired (Mulligan).


Percentile ranks were not given for the study skills, science and social science subtests. The listening subtest was not given to any EDCO student. It is unclear if an individual determination was made that this subtest was inappropriate or not necessary due to the individual needs of Student.


EDCO also has teachers experienced in teaching students with hearing loss, provides consultation to its inclusion teachers and has acoustic modifications in its classrooms (except the science and possibly art rooms) (Mulligan, see also P36, Papenfus). These issues are not in dispute.


The information about Ms. Luich’s hearing impairment came from Ms. Papenfus at hearing (Papenfus).


All of these students have individualized schedules and may not have been in the IM class each time Student was there ( see Luich).


EDCO did not submit progress reports for math, social studies, or science; see (P41).


The majority of the EDCO peers are deaf. All have a more severe hearing loss than Student but some also use speech and sign. It is difficult to know which classes Student shares with his EDCO peers because EDCO would not supply schedules despite a discovery request to do so ( see P40).


Progress notes for 7 th grade note that only language issues were worked on. Speech and language issues were addressed in 6 th grade; compare (P38-39, P42, 43, 45).


Guardian’s Counsel and School Counsel also attended the TEAM meeting; see (P6).


Counseling was to occur in two shorter sessions rather than one longer session, speech and language therapy was to occur in three shorter sessions. The service delivery times remained unchanged; compare (S3, P6).


Dr. Harvey did not pursue this statement further. It is unclear whether Student made a general statement or whether he asked for Dr. Harvey to sign because he could not understand him or had some other reason for this statement. Dr. Harvey has a beard and a mustache. Ms. Luich had trouble lipreading Dr. Harvey because he did not move his mouth and was not animated during testimony (Luich). Ms. Luich had a clear view of Dr. Harvey but was lipreading him at an angle. Ms. Luich also had trouble with some of the school witnesses (Luich).


The WIAT could also be readministered in three years because it has norms that extend throughout the secondary years (Wexler, S6).


Dr. Wexler decided not to use the Stanford 9 because it was a group test and he would not be able to observe how Student worked and reached solutions, could not use the test again for comparative purposes because the Stanford 9 only extends through 9 th grade, and the Stanford 9 Deaf and Hard of Hearing assessment would only give information about how Student compared to his deaf and hard of hearing peers; (Wexler, S6, S57).


Dr. Wexler told the interpreter and Dr. Mulligan that the interpreter would be present thoughout the testing and could interpret if it appeared that Student’s performance suffered because he was unable to hear or understand directions or questions. Dr. Wexler also told the interpreter that he would tell Student to ask him to repeat of clarify anything he did not understand and that the interpreter would be present the entire time (S6).


The joke was “Why did a football coach go to the bank? He wanted his quarter back”.


Dr. Wexler’s perception was that Student felt that having a second teacher in the class would be the same amount of help as having an interpreter as a visual reinforcer of any missed material. It is clear that Student heard the exchange but unclear if Student understood the role of the teacher and how it would play out in the classroom.


Student repeated one grade. Dr. Wexler compared Student’s performance with his grade peers and his age peers. He performed in the average range in reading compared to his grade low average compared to his grade. On the Numerical Operations subtest Student performed in the high average range compared to his grade and the average range compared to his age and performed in the average to low average range in mathematical reasoning.


The test was the last of the day and given directly after the reading comprehension task (S6).


The recommendations are not in dispute.


Ms. Papenfus observed Student at EDCO once in 6 th grade and twice in 7 th grade ( see Papenfus).


Ms. Myers also gave Malden information about several websites, books and facilities; see (S8).


Student was also administered the Stanford-10 with his EDCO peers in late June 2003 (Mulligan). EDCO is part of the norming group for the Stanford-10 Deaf and Hard of Hearing assessment (Mulligan, P78).


ASL is a visual spatial language incorporating signs, facial expressions, body movements, placement of the signs and context. The syntax (sign order) in ASL are generally sequential with time first and the question or subject at the end of the sentence. It also does not use endings such as “ing” or “ed”. For example the ASL translation of “I visited my dad three weeks ago”” would be translated “Three weeks past Father visit”. The facial expression and/or body language could change depending on the meaning the signer intends.


This provision in the current regulations is found at 603 C.M.R. 28.03 (2). It reads: “If a student found eligible in another state moves to Massachusetts, the new Massachusetts district of residence shall determine if it will accept or reject the finding of eligibility and/or the current IEP developed for the student in the former state of residence. If the Massachusetts district determines that the finding of eligibility and the IEP developed for the student continues to accurately represent the needs of the student, then the Massachusetts district shall, without delay, implement the IEP. If the Massachusetts district determines that a new evaluation is necessary to determine eligibility or services, it shall immediately provide written notice to the parent ” . This regulation is not clear about whether the school district’s obligations for implementation of the former IEP pending the results of the new evaluation and the reconvening of the TEAM.


Dr. Demiany’s concerns about Student’s grouping with peers less capable than him may not have been an issue if the IEP Malden proposed for more inclusion would have been accepted by Guardian.


The Parties were in the midst of litigation and may have come to an agreement regarding the IEP that the Hearing Officer was not privy to.


When the Hearing Officer asked Dr. Mulligan what he considered Student’s disabilities to be he shrugged and said “The hearing loss is a disability. The deaf community does not look at it that way but….” When asked about emotional issues he replied “he’s a nice kid, sometimes a pain in the neck, sometimes he’s paying attention, sometimes he is not paying attention. He’s a kid. He’s a junior high school kid that’s in classes and doing his thing the same as anybody else in the school”.

Updated on January 2, 2015

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