On May 5, 2000, the Wisconsin Department of Public Instruction received a due process hearing request from Ms. [Mother] (Parent) and Ms. [advocate] (Advocate) on behalf of [Student], (Child). The child is a student with a disability that resides within the Hustisford School District (District) but has been home-schooled for the last school year. The parent claims that the District had denied her son a free and appropriate public education (FAPE) and alleges numerous violations of the Individuals with Disabilities Education Act (IDEA) in her request for a due process hearing.

A pre-hearing teleconference was noticed and held on May 18, 2000. During this three-hour teleconference, a hearing schedule was set and the issues were discussed. One issue that arose at the teleconference was the ability of the undersigned Administrative Law Judge (ALJ) to award attorney fees and advocate fees. A pre-hearing motion deadline was set for May 24, 2000 and a response motion deadline was set for May 26, 2000. Both parties filed timely motions and a decision was rendered on this issue on June 1, 2000 when the undersigned administrative law judge (ALJ) limited the available remedies by excluding his ability to award of attorneys fees and advocate fees as requested in the Parent's request for a due process hearing.

After numerous e-mails, the hearing was conducted in the Hustisford High School Library on June 7th and 8th, 2000. Post-hearing briefs were submitted on June 15, 2000. E-mails received after the hearing were not considered.

1. [Student], a fifteen year-old boy (DOB xx/xx/xx) is a child with a disability. Diagnosed with an Attention Deficit Hyperactivity Disorder (ADHD), [Student] qualifies for IDEA services under the Other Health Impaired classification in 34 CFR § 300.7(c)(9). First diagnosed with ADHD in the third grade, [Student]’s disability warranted special education services at the end of [Student]’s seventh grade year when it was determined that [Student]’s ADHD caused a limited alertness in the educational environment that adversely affects his educational performance.
2. [Student] takes and has taken medication to control his ADHD, although finding the right prescription and dosage has been a challenge for the family and has caused other physical problems. The medications may cause insomnia, restlessness, palpitations and talkativeness. (Exhibit P-7). They include Adderall, Wellbutrin, and Dexedrine since June 1998 (Exhibit P-44).
3. On June 1, 1998, an Individualized Education Plan (IEP) was finalized for [Student] that recommended educational programming to address off-task behavior, inability to sustain long-term attention, difficulty with written language skills, and difficulty with organizational skills (Exhibits P-18 and P-21). It was at this point, that the Parent acknowledged that the communication between her and the school staff "was poor" (Exhibit P-23).
4. During the fall of 1998 – [Student]’s eighth grade year – [Student]'s behavior deteriorated, becoming much more argumentative and inattentive. The Parent, Advocate and District all met six times in an attempt to further modify the June 1, 1998, IEP. It was clear to staff and the District that the June 1, 1998, IEP was insufficient to meet [Student]’s educational needs.
5. The District sought to implement an IEP with a Behavior Intervention Plan (BIP) after two IEP meetings – one on February 3, 1999 and one on February 10, 1999. The Parent attended each.
6. The Parent objected to the BIP and filed for a due process hearing on February 17, 1999, LEA-99-008. The case was assigned to ALJ Sandra Sobocinski and the ALJ selected an evaluator to independently evaluate [Student] to determine the nature of his disability. On April 19, 1999, the ALJ ordered that Dr. Robert Newby conduct the independent evaluation, after both parties agreed to the appointment.
7. Both parties asked Dr. Newby to evaluate [Student]’s academic and behavioral performance and assess 1) the IEP developed on February 3, 1999, 2) the school and medical records, 3) the extent that medication affects his school performance, 4) strategies for improving home relationships (Exhibit D-8). Dr. Newby evaluated [Student], his records and interviewed parents and staff on April 20 and 21, 1999.
8. Dr. Newby completed his evaluation and issued his report on April 28, 1999. Dr. Newby was selected in an independent way and participated as an independent evaluator in this case. (Tr. Vol I at 27)
9. Dr. Newby’s findings are cogent, well reasoned and independent. They are summarized and adopted as follows:
1. In addition to ADHD, [Student] has Oppositional Defiant Disorder (ODD). This manifests itself in a pattern of stubbornness, resistance to directions, and hostile behavior to authority figures. ODD is often found in children who have ADHD. Dr. Newby testified that 40 percent of the children with ADHD also have ODD. Dr. William Watson, M.D., [Student]’s psychiatrist, also confirmed that [Student] has ODD (Tr. Vol I at 32 and D-4, letter from Dr. Watson).

2. [Student] shows an unusual interest in violence, guns and violent movies in an effort to alarm and provoke.

3. [Student]has average cognitive skills with strengths in reading and weaknesses in written language and math. He needs educational strategies of one-on-one and small group instruction to make further gains.

4. The February 3, 1999 IEP was generally appropriate. (Exhibit P-1)

10. [Student] is a child with an emotional disturbance. Due to the mixture of his ADHD and his ODD, [Student] has an inability to learn that cannot be explained by intellectual, sensory or health (medication) factors. He has an inability to build or maintain satisfactory interpersonal relationships with teachers. He has inappropriate types of behavior or feelings under normal circumstances. This form of disability has been evident over a long period of time and adversely affects [Student]’s educational performance. [Student]’s emotional disturbance qualifies under 34 CFR § 300.7(4) and needs to be addressed in his educational plan.
11. The participation of the Advocate, Ms. [Advocate], has not always been constructive to the pursuit of a program reasonably calculated to provide educational benefit for [Student]. The Parent and Advocate’s efforts, whether intended or not, have had the effect of delaying the appropriate educational program for [Student] by sending the IEP pursuit of consensus against itself. [Student]’s behavior has worsened as the IEP team has been frozen by seeking consensus. The Parent excuses and makes excuses for [Student]’s conduct (Exhibits P-29 and D-4, parent appealing suspension). The Parent’s feelings that [Student] is "being singled out and doubly punished" are not supported by credible evidence in the record.
12. After Dr. Newby’s report was issued, he participated by teleconference with the IEP team on May 6, 1999. The IEP team continued to meet on that day and the parents withdrew their previous due process hearing request before ALJ Sobocinski. The IEP team met again on May 18, 1999 to finalize the IEP, one that included many of Dr. Newby’s recommendations.
13. [Student] did not attend school in the Hustisford School District during the 1999-2000 school year, his ninth grade school year, as he was home schooled. This method of education is not in [Student]'s best education interests in the long term. In the short term, it may provide a relief from the psychological pressure he feels.

The Parent and Advocate make several allegations against the District in its brief, at the hearing, in the request for a due process hearing, and at the May 18, 2000 pre-hearing teleconference.

First, the Parent and Advocate allege that Dr. Newby was not independent and that he did not have enough information because he only had information from the school. There was no information submitted, either in document or testimony, which would implicate Dr. Newby’s independence. He was selected at the suggestion of Ms. [Mother]’s attorney during the previous due process action. In fact, Dr. Newby testified that he was independent (Tr. Vol I at 27-28), that he had enough information and enough time to conduct a valid independent evaluation (Tr.Vol I at 29), and that he found all parties cooperative in the evaluation. Dr. Newby is an expert at making evaluations and reviewing IEPs; his professional reputation is on the line and I can find nothing to question the independence or competence of Dr. Newby.

Second, the Parent and Advocate allege that the School District engaged in retaliation for a complaint the Parent filed against the District through the Department of Public Instruction’s (DPI) complaint process presumably regarding many of the same facts uncovered here. The contents of the complaint were not entered or considered in this proceeding. The Parent and Advocate, however, fail to prove that there was any retaliation against them for filing the DPI complaint. Staff frustration with [Student] and the process is evident, but no seething animus that would implicate some form of retaliation was discovered. CESA Director Ed Hawkinson testified that the Feb. 3, 1999 and Feb. 10, 1999 IEP meetings and draft IEP were completed prior to the District’s knowledge that the Parent and Advocate had filed a DPI complaint on February 12, 1999 (Tr. Vol. I at 182).

The Parent and Advocate allege that they have been denied records regarding [Student]. No evidence was presented that would show they were denied records. There were no witnesses that testified they denied documents or any written refusal to provide documents. Some documents appeared at the hearing, such as Dr. Watson’s diagnosis (P-42), which the District had never seen before – even with the requirement that they be produced seven days prior to the hearing. I find no unfulfilled request for documentation.

The Parent and Advocate allege several procedural violations. They allege that the IEPs are "pre-written". The District maintains that they were "draft", waiting for alteration and approval. There isn’t much of a practical difference, only a difference in the intent imputed to the document. The District’s preference for compiling draft IEPs during this tortured process, with several instances of miscommunication and innumerable contributions from several players is understandable. The Parent and Advocate’s belief that these IEPs are to be scripted during the IEP meeting would further bog down the process. The Parent and Advocate provide no legal authority to buttress their opinion.

The Parent and Advocate argue that the Director of CESA 6, Mr. Ed Hawkinson did not share progress reports with them and that he was too influential in an IEP process. Mr. Hawkinson administered an IEP process attempting to direct the process in a constructive way and pulling [Student]’s educational program out of the morass of personality conflict and an insufficient IEP. The Parent and Advocate failed to argue convincingly that Mr. Hawkinson’s participation was a procedural violation or that some information, such as the accounting of [Student]’s on-task activity, was somehow kept secret.

The Parent and Advocate claim that the decision that [Student] was ODD was made outside the IEP meeting but offers no proof or authority. What is clear is that [Student]’s behavior was becoming increasingly disruptive to both his and other student’s educational objectives. The District was frustrated in the inability to deal with the disruptions because of an insufficient IEP and a Parent that made excuses, levied countercharges when confronted with her child’s misbehavior and then obfuscated the process meant to deal with these situations. The IEP team was obligated under 34 CFR § 300.346(2)(i) to include positive behavioral interventions, strategies and supports when a child’s behavior impedes his learning, as it was here.

The Parent misunderstands her role in the IEP process. She does not have veto authority over an IEP. The process was set up to achieve consensus and not to logroll. When consensus cannot be achieved, a due process hearing is in order – that is the remedy and was pursued here. The Parent and Advocate had ample opportunity to influence the IEP process. Their attendance at the many IEP meetings in the fall and winter of the 1998-99 school year attest to their participation. There were no critical errors in the IEP process that would have questioned the validity of the February 3, 1999 IEP or the May 18, 1999 IEP.

The Parent and Advocate object to the classification of [Student] as emotionally disturbed. This appears to be the gravamen of the whole process, but offer no evidence to refute this label. Labels can be helpful when they lead to educational strategies that provide a more individualized educational program. The Parent claims that [Student] isn’t really emotionally disturbed because his behavior is due to the medication he is taking. Yet Dr. Watson, [Student]’s psychiatrist, and Dr. Newby label [Student] as ODD. It is a short jump from this medical diagnosis to the legal definition of emotionally disturbed found in 34 CFR § 300.7(4).

This is not a difficult case to decide. It is a difficult case to remedy. Trust has been broken over this process and trust is a difficult thing for a hearing officer to repair. The flickering hope is the limited success that the District experienced with [Student] implementing the February 3, 1999 IEP until he was removed from the school. It is clear from this seat that the May 18, 1999 IEP was reasonably conceived to provide an educational benefit to [Student]. The District appropriately pursued a behavioral contract with reinforcement program and a cognitive behavioral intervention curriculum. The District has done its job and provided FAPE to [Student]. Yet, if the IEP team had the information on [Student]’s medication struggles and had a Parent that would reinforce the behavioral strategies implemented at school, [Student]’s education would be that much better.

There is no doubt that the insertion of both the District’s attorney and the Advocate into these proceedings has added an acrimonious flair. The Advocate’s participation has been deleterious to the pursuit of [Student]’s educational plan – not because she advocated a position or helped the Parent with the hearing process, but because her efforts served to needlessly delay the process by several months. It is my opinion and the opinion of Dr. Newby that this effort undermined the District’s educational program for [Student].

The District asks for some penalty, some "Special Education Jail" to send the Advocate. It requests some continued monitoring of the process by the undersigned ALJ. This is declined as counter to the intent of the IDEA.

Both sides have options. The Parent can continue to home school [Student] and avoid the IEP process entirely. As testimony shows, that comes at a long-term educational cost to [Student]. The District could pursue an educational guardian in circuit court if it feels that Parent and Advocate are impeding its ability to provide an educational benefit. The cost with this option is the foregoing of home strategies and medication information that could make [Student]’s program better.

I find no authority to pursue some micro-management or mediation of the process after the decision has been rendered. I refrain from dictating the participation of parties to the process in the future. The District acted appropriately in this case, as determined by this decision. [Student]’s educational program can now move forward from a new plateau, with an IEP that includes educational and behavioral intervention strategies for a child with ADHD and an emotional disturbance. Congress and the regulators set up a process with finality, 20 U.S.C. 1415(i)(1)(A) and 34 CFR § 300.510(a). Any additional case management would infringe upon the options of the parties for future mediation and hearings if needed.

1. The Hustisford School District provided a free and appropriate public education [Student] during the 1998-1999 school year.
2. The Individualized Education Plan formulated on May 18, 1999 was reasonably conceived to provide an educational benefit.
3. The Hustisford School District is the prevailing party.

It is hereby ordered that the due process hearing request, LEA-00-017 be dismissed.

Dated at Madison, Wisconsin, this 19^th day of June 2000.