By contrast, there are no BSEA cases during the time period 1997 through today in which the IHO denied the parents’ request for a private placement or services but where the BSEA reversed the hearing officer and awarded private placement or services
Based on this historical overview of all known BSEA decisions since 1997, the following appears to be true:
Although there are no reversals granting a private placement win for a parent, there are five in which the IHO giveth and the BSEA taketh away. If you are a parent and the Independent Hearing Officer finds in your favor and awards private placement or services, based on what has happened historically, if the school appeals, there are FIVE instances where this has happened in the past seven years, where the BSEA reversed the parents’ favorable decision to find in favor of the school and void the private placement and payment, unfairly leaving the parent holding the bag on their litigation expenses.
*** NOTE. This scenario puts parents at a distinct disadvantage in an appeal in state or federal court because the court will defer not to the hearing decision by the hearing officer who actually attended the hearing and was there to judge the demeanor and credibility of the witnesses at the hearing and who personally reviewed all the materials presented as exhibits, but it will defer to the decision of the BSEA, a three-member panel who does not attend the hearing and thus could not possibly judge the demeanor of the witnesses at hearing. Significantly, the BSEA conducts its review without the presence of the parties, as noted in writing in its decisions, and in fact routinely denies motions of counsel to present oral arguments or to attend the BSEA review, also as noted in the decisions, when this has been requested.***
1. By sharp contrast, if you are a school and the IHO finds in your favor, then you might feel comfortable knowing that in 84 out of 85 past cases (or 98.8 percent of the time), the BSEA can be counted on to affirm the decision in your favor because there was only one instance out of 85 cases in which the school’s favorable decision was reversed to be in favor of the parent, and as stated above, in that case, the school had never bothered to file a response to the parent’s Petition for Review.
**** Note: We are not saying that every single private placement decision in parents’ favor has been reversed. In fact, there are several cases where a private placement or reimbursement situation was won by parents at hearing and affirmed at the BSEA level. What we ARE saying is that when a decision IS reversed, most of the time it is a decision that was in favor of parents at the hearing officer level and most of the time (five out of six times) the case centered around a private placement scenario, which would have cost the school thousands of dollars.
Getting rid of the BSEA would not benefit me personally, other than the knowledge that cases would be decided fairly and that the playing ground would be level.
Why do I, personally, care about this “fox guarding the henhouse” scenario? It’s not about money. I get paid, win or lose. I am lucky in that most of my clients are quality people who pay their legal bills.
Further, the BSEA website doesn’t list who the attorneys are in the cases, so I don’t get good or bad publicity in those cases, win or lose.
I care because I believe that a system should be just, and I believe that if a parent wins a case fair and square in a decision by a hearing officer who was actually THERE to hear the testimony, in person, and was able to judge the credibility of the witnesses, that that decision should not be overturned, at a loss of several thousand dollars, by a panel of people who are not required to have special expertise in the law or special education, are not attorneys and who operate in “secret” by conducting their review in a closed proceeding, even when the parties ASK to give oral arguments or attend the proceedings.
The hearing system should be enforcing the federal and state laws before it, not trying to create an appearance that all is well here in Indiana when that is clearly NOT the case.
In fact, forty percent of Indiana schools did not meet the Adequate Yearly Progress required by the No Child Left Behind Act for the most recent year for which statistics are available (2004). See Indiana Department of Education Website for information on which schools did and which schools did not. Go to http://www.doe.state.in.us and click on red/white/blue “No Child Left Behind Indiana” tab on right side of page to see the statistics on Indiana’s failing schools and press release on same http://www.doe.state.in.us/reed/newsr/2005/06-June/AYP060805.html.
This would eliminate the cost, bias and egregious abuse of students’ due process rights that is occurring in Indiana at this time and will continue to occur until this change is made.
This move has no down side, except for those who have an interest in allowing the violations of special education students’ rights to continue, unfettered.
I have secured the permission of two families who have had their favorable hearing officer decisions reversed by the BSEA to reveal their contact information if any of you would like to confirm what I am saying.
Parents of child in J.K. case, cited above and formerly of Fort Wayne, Indiana, but moved away to secure appropriate services for their son with autism, in a public school in Arizona. He is now doing quite well.
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Date IHO decision
Case Number
Hearing Officer
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Who won BSEA appeal level
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1. N.B. vs MSD of Martinsville
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6/26/1997
921-96
Dennis Graft
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2. E.L. vs MSD of Martinsville
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4/4/1997
927-96
Julie Steck, Ph.,D
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3. M.S. vs Eagle-Union Community School Corporation
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3/12/1997
941-97
Joseph McKinney
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4. C.M.E. vs Duneland School Corporation and Porter County Education Interlocal
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5/20/1997
945-97
Jerry L. Colglazier
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|
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5. W.S. vs Rockville Community School Corporation and Covered Bridge Special Education District
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5/30/97
956-97
Curtis Leggett, Ph.,D
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6. A.R. vs County School Of Brown County
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9/11/1998
1058-98
Curtis Leggett, Ph.,D
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7. A.S. vs Centerville-Abington Community Schools and East Central Special Services
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5/18/1998
1012-98
(doesn’t say)
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Partial for Both;
School Primarily
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Partial for Both;
School Primarily
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8. M.S. vs Eagle-Union Community School Corporation
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6/8/1998
1007-98
(doesn’t say)
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9. L.S. vs Nineveh-Hensley-Jackson United School Corp., Johnson County Special Programs
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2/19/1998
1000-97
Joseph McKinney
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Partial for Both;
Parents Primarily
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10. D.E. vs Michigan City Area School Corporation
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1/9/1998
990-97
Doesn’t say
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11. L.M. vs Brownsburg Community School Corp., West Central Joint Services
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2/17/1998
997-97
Dennis Graft
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12. N.U. and S.U. vs Fort Wayne Community Schools
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11/10/1997
988-97
Dennis Graft
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13. B.H. vs South Bend Community School Corporation
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11/10/1997
977-97
Doesn’t say
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14. S.M. vs Brown County School Corporation
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8/10/1999
1077-98
Unknown
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Parents
(Note: School failed to respond to Pet. For Review)
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15. E.H. vs School City of East Chicago
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6/16/1999
1051-98
Unknown
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Partial for Both; Parent Primarily
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16. J.H.L., II vs Lafayette School Corporation, Greater Lafayette Area Special Services Cooperative
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3/29/1999
1071.98
Cynthia Stanley
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17. L.N. vs Greater Clark County Schools and Greater Clark County Special Education Cooperative
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1/11/1999
1039.98
Jerry Colglazier
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18. A.S. vs. Richmond Community School Corporation
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11/23/1998
1055.98
Jerry Colglazier
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19. K.K. vs New Prairie United School District and South LaPorte County Special Education Cooperative and Indiana Department of Education
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11/16/1998
1062-98
unknown
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20. D.S. vs Lakeland School Corporation And Northwest Indiana Special Education Cooperative
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11/10/1998
1063-98
unknown
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21. L.W vs Valparaiso Community Schools and Porter County Education Interlocal
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3/8/1999
1037-98
James Roth
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22. J.S. vs Lafayette School Corporation, Greater Lafayette Area Special Services
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10/9/2000
1163.00
Kristin Anderson
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23.C.N. vs Fort Wayne Community Schools
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8/7/2000
1167.00
Curtis Leggett, Ph., D
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24. L.T. vs Indianapolis Public School
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6/29/2000
1147.00
Unknown
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25. D.C. vs West Central Indiana Special Education Services and Attica Consolidated School Corporation
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4/5/2000
1128.99
Cynthia Stanley
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26. L.C. vs Merrillville Community School Corp., And Northwest Indiana Special Education Cooperative
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3/17/2000
1142.00
Dennis Graft
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Partial for Both; Parents Primarily
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Partial for Both; Parents Primarily
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27. K.K. vs. South LaPorte County Special Education Cooperative and New Prairie United School Corporation
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2/28/2000
1116.99
Thomas Huberty
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28. T.K. vs. Valparaiso Community Schools nd Porter County Educational Interlocal
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1092.99
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Partial for Both; Parents Primarily
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Partial for Both; Parents Primarily
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29. B.S. vs. Crown Point Community School Corp., and Northwest Indiana Special Education Cooperative
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3/15/2000
1136.99
Jerry Colglazier
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30. D.E. vs. Michigan City Area Schools
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2/7/2000
1134.99
Joseph McKinney
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31. J.T. vs. Vigo County School Corporation and Covered Bridge Special Education District
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1/24/2000
1133.99
Curtis Leggett
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32. R.T. vs. Duneland School Corporation and Porter County Educational Interlocal
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1/19/2000
1119.99
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33. T.M. vs. Northwestern School Corporation and Kokomo Area Special Education Cooperative
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12/31/1999
1123.99 TM
Lon Woods
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34. C.M. vs. Northwestern School Corporation and Kokomo Area Special Education Cooperative
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12/31/1999
1123.99 CM
Lon Woods
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35. D.R.W vs. Crown Point Community School Corporation and Northwest Indiana Special Education Cooperative
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1/10/2000
1105.99
Jerry Colglazier
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36. K.M. vs. Northern Community School Tipton County And Kokomo Area Special Education Cooperative
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1238.01
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|
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37. J.B. vs. Mooresville Consolidated School Corp., West Central Joint Services
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8/25/2001
1218.01
Thomas Huberty
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38. S.M. vs. MSD Martinsville
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6/13/2001
1198-01
Kristin Anderson
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39. J.P. vs. West Clark Community Schools and Greater Clark County Special Education Services
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6/25/2001
1211.01
Thomas Huberty
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40. K.T. vs. Switzerland County School and Madison Area Special Services Unit
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12/15/2000
1181-00
|
|
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41. L.M. vs. Wesfield- Washington Schools And Hamilton-Madison-Boone Special Services
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9/30/02
1302.02
Lon Woods
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Partial for Both; School Primarily
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42. R.B. vs. Penn-Harris-Madison School Corporation And Mishawaka-Penn-Harris-Madison Joint Services
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2/8/2002
1259.01 & E1258.01
Kristin Anderson
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43. N.H. vs. South Vermillion Community School Corp., And Covered Bridge Special Education District
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6/24/2002
1262.01
Jerry Colglazier
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Partial for Both; Parents Primarily
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44. B.H. vs Franklin Community And Johnson County Special Programs
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6/24/2002
1243.01
Kristin Anderson
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Partial for Both; School Primarily
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45. C.K. vs. Vigo County School Corporation and Covered Bridge Special Education District
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6/1/2002
1269.02
Jerry Colglazier
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|
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46. M.D. vs. Western Boone Community School Corp., And Boone-Clinton-Northwest Hendricks Joint Services
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3/28/2002
E1261.02
Thomas Huberty
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47. J.B. vs. MSD Lawrence Township
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2/24/2002
1253.01-B
Curtis Leggett
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|
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48. N.B. vs. Lawrence Township
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2/24/2002
1253.01-A
Curtis Leggett
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|
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49. L.W. vs. Valparaiso Community Schools And Porter County Education Interlocal
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1/5/2002
1246.01
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|
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50. T.W. vs. Fort Wayne Community Schools
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12/18/2001
1248.01
Thomas Huberty
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|
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51. T.G. vs. MSD Wabash County and Wabash-Miami Area Program
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11/29/2001
1245.01
Lon Woods
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Partial for Both; Parents Primarily
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Partial for Both; Parents Primarily
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52. D.B. vs. Merrillville Community Schools, and Northwest Indiana Special Education Cooperative
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10/20/2001
1228.01
Jerry Colglazier
|
|
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53. M.P. vs. Noblesville Community School Corp., And Hamilton-Boone-Madison Special Services Cooperative
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9/6/2003
1342.03
Thomas Huberty
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Partial for Both; School Primarily
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Partial for Both; School Primarily
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54. N.M. vs. MSD Warren Township
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6/21/2003
1337.03
Jerry Colglazier
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|
|
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55. N.W. vs. Fayette County School Corporation and East Central Special Services
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5/10/2003
1301.02
Kristin Anderson
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|
|
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56. B.W. vs. MSD Lawrence Township
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3/29/2003
1322.02
Curtis Leggett
|
|
|
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57. D.C. vs. Jay School School Corporation
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2/22/2003
1319.02
Lon Woods
|
Partial for Both;Parents Primarily
|
|
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58. R.B. vs. Bartholomew Consolidated School Corporation and Bartholomew County Special Services
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3/10/2003
1290.02
Jerry Cloglazier
|
|
|
|
59. C.H. vs. School City Of Hammond
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2/14/2003
1296.02
Dennis Graft
|
|
|
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60. M.W. vs. New Albany-Floyd County Consolidated Schools
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1/31/2003
1307.02
Jerry Colglazier
|
|
|
|
61.B.W. vs. MSD Perry Township and RISE Special Services
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2/3/2003
1306.02
Rolf Daniel
|
|
|
|
62.C.W. vs. Carmel Clay Schools and Hamilton-Boone-Madison Special Services Unit
|
1/13/2003
1315.02
Rolf Daniel
|
|
|
|
63. B.J.W. vs. Alexandria School Corporation
|
10/29/2002
1268.01
Joseph McKinney
|
|
|
|
64. R.L. vs. Richmond Community School Corporation
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6/4/2004
1415.04
Joseph McKinney
|
|
|
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65. M.K. vs. Brownsburg Community School Corporation and West Joint Services
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5/24/2004
1402.04
Joseph McKinney
|
|
|
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66. H.S. vs. West Lafayette Community School Corporation And Greater Lafayette Area Special Services
|
4/27/2004
1401.04
Thomas Huberty
|
Partial for Both; Parents Primarily
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Partial for Both; Parents Primarily
|
|
67. J.K. vs. MSD Southwest Allen County Schools and Smith-Green West Allen Special Education Cooperative
|
3/5/2004
1388.04
Joseph McKinney
|
|
|
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68. Z.F. vs. South Harrison Community School Corporation and Harrison County Special Ed. Coop
|
10/6/2003
1360.03
Thomas Huberty
|
Partial for Both; School Primarily
|
Partial for Both; School Primarily
|
|
69. N.M.P. vs. Valparaiso Community School Corporation and Porter County Education Interlocal
|
11/12/2003
1366.03
Dennis Graft
|
|
|
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70. B.L. vs. Warsaw Community School Corporation and North Central Indiana Special Education Cooperative
|
1/28/2004
1390.04
Cynthia Stanley
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|
|
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71. H.D. vs. Plainfield Community School Corporation and West Central Joint Services
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1/9/2004
1391.04
Joseph McKinney
|
|
|
|
72. N.S. vs. East Allen County Schools
|
1/5/2004
1392.04
Dennis Graft
|
|
|
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73. C.B. vs. MSD Lawrence Township
|
8/12/2003
1363.03
Lon Woods
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|
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74. S.E. vs. Carmel Clay And Hamilton-Boone-Madison Special Services Cooperative
|
10/24/2003
1348.03
Dennis Graft
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|
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75. A.D. vs. Clay Community School
|
11/29/2003
1373.04
Lon Woods
|
|
|
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76. B.B vs. Duneland School Corporation and Porter County Education Interlocal
|
10/6/2003
1335.03
Dennis Graft
|
|
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77. W.J.C. vs. Duneland School Corporation and Porter County Education Interlocal
|
10/22/2004
1446.05
Lauranne Nordstrom
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|
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78. E.B. vs. Center Grove Community School Corporation and Johnson County Special Services
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12/8/2004
1465.05
Cynthia Stanley
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|
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79. S.K. vs. School Town Of Munster, and West Lake Special Education Cooperative
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3/7/2005
1461.05
Joseph McKinney
|
|
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80. A.K. vs. MSD Mount Vernon and Posey Special Education Cooperative
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11/20/2004
1437.04
Laureanne Nordstrom
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81. A.H. vs. School Town Of Highland and Northwest Special Education Cooperative
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9/14/2004
1440.04
Joseph McKinney
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|
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82. A.D. vs. Franklin Township School Cooperation and RISE Special Services
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1447.05
Dennis Graft
|
|
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83. W.J.C. vs. Duneland School Corp. and Porter County Education Interlocal
|
1446.05
Laureanne Nordstrom
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|
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84. A.H., vs. School Town of Highland and Northwest Special Education Cooperative
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1440.04
Joseph McKinney
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85. A.K., vs. MSD MountVernon, and Posey Special Education Cooperative
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1437.04
Laureanne Nordstrom
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86. S.K., vs. School Town of Munster, and the West Lake Special Education Cooperative
|
1461.05
Joseph McKinney
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87. E.B. vs. Center Grove Community School Corporation, and Johnson County Special Programs
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1465.05
Cynthia Stanley
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88. L.B. vs. Greater Clark County Schools and Clark County Special Education Cooperative
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1502.05
Laureanne Nordstrom
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