The Parties to this proceeding are:

On May 15, 2000 the Department of Public Instruction received a request for a due process hearing for [Student], a child residing in the Wisconsin Dells School District (District). The child's maternal grandmother and legal guardian, hereafter referred to as the Parent, made the request. She alleged numerous violations that constitute a denial of a free and appropriate public education (FAPE) in violation of the Individual with Disability Education Act (IDEA).

A pre-hearing teleconference was noticed and held on May 24, 2000. At this point, the undersigned administrative law judge determined that a bifurcated hearing process would be pursued with the first portion of the hearing scheduled for June 22 and 23, 2000. A briefing schedule was set for this portion of the process as well. This hearing was held as noticed and was limited to the nature and extent of the child's disability as it relates to the alleged denial of FAPE.

At the hearing, another hearing was scheduled for July 31 and August 1, 2000 to deal with the issues of the Individualized Education Plan (IEP) process, placement and any other outstanding issues. Additional witness lists and exhibits are required to be noticed by 4:30 p.m. on July 24, 2000. Post-hearing briefs are due by 4:30 p.m. on August 14, 2000 and a final decision is due on August 23, 2000 in order that the child can commence school in the fall with an appropriate educational program and placement.

1. [Student] is an eleven year-old child with a disability in need of special education services and is a resident of the Wisconsin Dells School District. He has been educated as a child with an emotional disturbance.
2. [Student] was referred for an M-Team determination on September 5, 1991 by his Parent, a week past his third birthday. On October 28, 1991, the M-Team determined [Student] had difficulty with speech and with non-compliant behavior. Speech and language therapy and a behavior modification program were recommended. (Exhibit D-1) At this point, [Student] was placed in the Early Childhood program until June 1994 and received daily speech and language therapy and a structured behavioral modification program for his emotional disturbance. (Exhibit D-2)
3. An M-Team reevaluated [Student] and met on April 25, 1995, at the end of his year in kindergarten. This M-Team determined that speech and language therapy was no longer needed but that "severe, chronic and frequent" behavioral problems remained. These problems were evidenced in aggressive outbursts and uncontrollable behavior, including hitting, kicking, attempting to bite and throwing things. The M-Team noted that [Student] was capable of doing daily work, but was strong-willed and had difficulties listening and following academic tasks. It also noted that [Student]'s fine motor skills were a bit delayed and that he did better with structure, routine and predictability. The M-Team determined that [Student] was sensitive to touch and noise and did not want to be rushed or threatened. The M-Team determined that [Student] would benefit from an Individualized Education Plan (IEP) to address behavioral concerns. It did not label any form of other handicap. (Exhibit D-2)
4. The Parent took [Student] to the University of Wisconsin Hospital and Clinics for evaluation by Dr. Austin Woodard, a child psychologist, on July 23, 1996. Dr. Woodard noted that [Student]'s behavior had steadily worsened over the past year. He noted that [Student]'s behavior improved when given highly individualized attention. He diagnosed an attention deficit hyperactivity disorder (ADHD) of moderate severity. Dr. Woodard also noted that this was not exclusive as he recommended that a mood disorder or bipolar disorder be considered. He also mentioned "an autistic spectrum condition" as a consideration to be explored but did not diagnose this condition. (Exhibit D-10)
5. On October 11, 1996, Dr. Woodard met with Dr. Michael Witkovsky, the Parent and personnel from [Student]'s school. Dr. Witkovsky is a pediatric psychologist also with the University of Wisconsin Hospital and Clinics. After this meeting, Dr. Woodard altered his diagnosis after being informed of [Student]'s behavior to a greater extent. Dr. Woodard determined that [Student] had a multiplex developmental disorder but whether that was a pervasive developmental disorder (PDD) or another form of a severe childhood disorder was not determined. (Exhibit D-11) In the winter of that school year, [Student]’s behavior had deteriorated to the point that Dr. Witkovsky placed him in the children’s psychiatric unit at Meritor Hospital. (409:6- 411:5)
6. Mr. Ray Urbas, interim pupil services/special education director for the District during the 1996-97 school year testified that he attended an informational meeting, along with other school personnel, on [Student] at Meriter Hospital in late winter 1997. The purpose of the meeting was to gain information to construct a better IEP. Mr. Urbas stated that while PDD was not concretely diagnosed, it was mentioned for consideration of [Student]’s educational program. (364:9 – 366:18)
7. Dr. Witkovsky diagnosed [Student] with PDD on May 20, 1997 after another month's stay at Meriter Hospital in Madison. [Student] was admitted at Meriter because of worsening aggression in school and at home three months after his previous stay. Dr. Witkovsky specifically noted to consider Asperger’s syndrome, one of five classifications of PDD, but did not diagnose the specific form of PDD. He also diagnosed [Student] with Reactive Attachment Disorder. (Exhibit D-7) Dr. Witkovsky, in testimony, described both the PDD and Reactive Attachment Disorder as "concrete". (280:22)
8. Dr. Witkovsky recommended a special education program for [Student] to address the needs as if he had a pervasive developmental disorder. In addition, medication therapy continued to treat [Student]'s depression. (278:4-12) (Exhibit D-7) Another meeting was held with Dr. Witkovsky, the Parent and school personnel to discuss the diagnosis (411:10-25).
9. [Student] was in the third grade during the 1997-1998 school year and was administered an educational program geared toward a child with an emotional disturbance. His third grade teacher, Ms. Barbara Lee, testified that [Student] displayed a pervasive mood of depression, unhappiness and anxiety. She also testified that [Student] demonstrated inappropriate forms of behavior to normal circumstances. He developed headaches and stomachaches associated with school problems. (59:8- 61:18) It should also be noted that [Student]'s behavior this year was better than the previous year (38:20-25)
10. The District conducted its three-year reevaluation on April 16 and 17, 1998. It determined that [Student] continued to need special education services to deal with learning and behavior. His behavior was determined to have a significant impact on his performance and an improvement in his behavior was noted with increased structure and constant adult supervision. (Exhibit D-3) It took the PDD diagnosis into consideration (46: 18), but did not recommend a change in special education programming.
11. An M-Team received this reevaluation and on April 21, 1998, issued a report that explained [Student]'s disability as emotional disturbance (ED). It did not determine that [Student] had Autism or Other Health Impaired classifications. (Exhibit D-4)
12. [Student]'s fourth grade year, the 1998-1999 school year, had a similar program geared towards an emotional disturbance. His fourth grade special education teacher, Mary Cormican, also noted behavior that qualified [Student] as a child with an emotional disturbance. (86:1-23)
13. In January 1999, [Student] was removed from his fourth grade class in the Wisconsin Dells School District by his Parent and placed in the Mendota Mental Health Institution. Dr. Ed Musholt initially determined that [Student] had a Reactive Attachment Disorder, Anxiety Disorder-NOS and ADHD, much like Dr. Woodard had initially diagnosed three and a half years earlier. Dr. Musholt ruled out PDD-NOS in May 1999. By August, however, Dr. Musholt had reevaluated his diagnosis and found [Student] had sleep apnea and PDD-NOS. PDD-NOS stands for pervasive developmental disorder – not otherwise specified and is another one of the five categories of PDD. This information was conveyed in an August IEP meeting held at Mendota. (Exhibits D-12 and D-23)
14. [Student] enrolled in the Wisconsin Dells School District in the fall of 1999. His behavioral problems continued and a change in placement was effected. An IEP meeting was held on December 10, 1999 where the parent attended with her attorney. Subsequent efforts to get the Parent's permission to re-evaluate [Student] were not successful due to the Parent's refusal to allow a re-evaluation.

The District maintains that [Student] is an emotionally disturbed child that has been appropriately educated as such since the age of three. There is no doubt that [Student]'s severe, chronic and frequent aggressive behavior has impeded his educational program. His M-Team reports and testimony from teachers note that [Student] exhibited inappropriate affective behavioral responses to normal situations, exhibited moods of depression and anxiety, and developed physical symptoms associated with school or personal problems. At times, [Student] withdrew from social interaction, altogether. (59:8 - 61:19) Moreover, [Student]'s psychiatrist, Dr. Witkovsky diagnosed [Student] with different emotional illnesses and prescribed anti-depressant medications. In his discharge summary, Dr. Witkovsky noted that [Student]'s depression made therapy difficult. (Exhibit-7) For the purposes of identification in 34 CFR §300.7(c)(4) and Wis. Admin. Code § PI 11.35(g), [Student] is a child with an emotional disturbance.

The Parent on the other hand, maintains that [Student] has been medically classified as a child with a Pervasive Developmental Disorder - Not Otherwise Specified or PDD-NOS. According to the DSM-IV Manual, this is a disorder that is classified among other pervasive developmental disorders, including autism, Asperger's Syndrome, Childhood Disintegrative Disorder and Rhett's Disorder. Taken together, this basket of disorders is described as disorders of the autism spectrum. That is the medical terminology.

Under 34 CFR§300.7(c)(1)(i), autism is defined as "a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's performance." The definition goes further and describes what the legal definition of autism looks like: "Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences." Wisconsin also defines autism in PI 11.35(i) in a way that is more descriptive and expansive but not substantively different than that found in 34 CFR§300.7(c)(1)(i).

Notably, the terms "Pervasive Developmental Disorder", "PDD", or "PDD-NOS" do not appear in either the federal or state regulations. I can find no authority to believe it was the intention of the regulators to exclude children diagnosed with this portion of the autism spectrum but include the children with an autism disorder in its eligibility for special education services. Unlike some states that have specified PDD as either Autism or Other Health Impairment, Wisconsin is silent on this nomenclature.

The Office of Special Education Programs in the Federal Department of Education has provided insight, however. First, it suggests that children with PDD could require special services - it also finds no intent to exclude these children. In addition, it suggests looking at the child's disability and addressing the services that are needed. Letter to Coe, 32 IDELR 204. (1999). For the purposes of this process and hearing, Autism, as evinced in 34 CFR§300.7(c)(1)(i) and PI 11.35(i), is synonymous with the disorders included in the definition of Pervasive Developmental Disorder included in the DSM-IV Manual, also referred to as the "autism spectrum". A child with PDD-NOS would exhibit behavior that should be classified as a form of Autism described in 34 CFR§300.7(c)(1)(a).

It is clear that based on the reports of the M-Teams and other testimony that [Student] evidences this behavior. As early as kindergarten in 1995, the District recognized that [Student] didn't like to be rushed or threatened and was sensitive to touch and noise. (Exhibit D-2) It noted that [Student] preferred structure, routine and predictability. This behavior comports with the autism definition that children be resistant to environmental change and have unusual responses to sensory experiences. Ms. Cormican, [Student]'s fourth grade special education teacher, noted [Student]'s difficulty in unstructured settings like cafeteria, recess and gym, again noting [Student]'s resistance to environmental change. (Exhibit D-6) Many testified that [Student] needed structure in his daily work. Ms. Gail Webb, the school psychologist, received Dr. Woodard's report after meeting with him. [Student]'s communication problems were noted at this meeting and in his report.

The District clearly knew of the PDD speculation by Dr. Woodard dated October 11, 1996 and the PDD diagnosis by Dr. Witkovsky dated May 20, 1997. It attended meetings where this information was conveyed and considered in its re-evaluation of [Student] in April 1998. (Exhibit D-3) Moreover, it attended an IEP meeting at Mendota in August 1999 and reviewed Dr. Musholt’s PDD diagnosis, not to mention his perspective after educating [Student] for six months.

There are two factors that must be addressed that lessen the expectation that the District would adhere to Dr. Witkovsky's diagnosis and recommendation for special education. The first factor is the age of [Student]. Autism, as it is defined here to include the PDD categories, is a communication-based disorder that usually appears before the age of three. In [Student]’s case, he did not have his first contact with the District until a week after he turned three years old. The regulations recognize, however, that "a child who manifests the characteristics of ‘autism’ after age 3 could be diagnosed as having ‘autism’ if the criteria [noted in the definition is] satisfied. 34 CFR§300.7(c)(1)(ii). The quotation marks in this passage further support the opinion held here that the legal term autism is used in the regulations for the autistic spectrum. Clearly, [Student] is not precluded from special education services because his PDD was discovered after he was three years old.

Second, the District offered the reports and expertise of three outside analysts that evaluated [Student]: Dr. Austin Woodard, a psychologist with UW Health and Clinics, Dr. Michael Witkovsky, a child psychiatrist with UW Health and Clinics, and Dr. Ed Musholt, a child psychologist with Mendota Mental Health Institute. Each had varying opportunities to communicate with each other, with [Student], with his Parent, and with school personnel. Each wrote initial reports and final or discharge reports. While the interim reports vary greatly as to what they thought was [Student]'s problem, the final reports all identify PDD. In fact, this is probably the only consistency between the three diagnostic reports. They all had varying disagreements over the nature and extent of what else might be troubling [Student]. But as Dr. Witkovsky noted, his diagnosis was arrived at over an eight-month period after ruling out things initially. PDD-NOS was the "single best explanation of what would capture all of [Student]’s information in a meaningful way." (294:24 – 295:20) Apparently it takes time for experienced clinicians to determine the nature of [Student]’s disability beyond the evident emotional disturbance.

Given the weight of the evidence, it should not be surprising that [Student], for legal purposes, has both autism and an emotional disturbance. In fact, the regulations apparently anticipated this co-morbidity when they drafted the autism definition. Dr. Witkovsky testified that mood, anxiety and PDD are co-morbid at rates between 20 percent and 50 percent. (300:4-5) The definition for autism is notably broad, including as it does the entire autism spectrum of disabilities. Dr. Witkovsky noted as such when asked whether [Student] rocked back and forth. He replied that [Student] did rock back and forth when playing on the computer, "but by no means is he the only child to do that." (257: 7-8)

Specifically, the regulations note that autism "does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance". 34 CFR§300.7(c)(1)(i). (emphasis added) In this way, the regulations compensate for a broad definition of autism by limiting its use in the cases of emotional disturbance. Also note that if [Student] did not have an emotional disturbance, the District should have constructed a special education program as if he had autism as defined in 34 CFR§300.7(c)(1)(i) and (ii).

The District, by all accounts, determined that [Student] had an emotional disturbance. According to testimony, the District treated the emotional disturbance with an educational program that it thought would provide an educational benefit to [Student]. It is clear that the regulations have been written to allow school districts to provide educational services for emotionally disturbed children when this is the primary impediment to learning. In these cases, autism as defined here absolutely does not apply. The regulations give no discretion to school districts or hearing officers.

Dr. Witkovsky says there is a problem with [Student]’s "hard wiring" -- his term. (251:15) According to Dr. Witkovsky, [Student] moves not to the beat of a different drummer, but to his own drummer. [Student]’s world is one of sound bites that needs structure. The education strategies that Dr. Witkovsky recommended include eye contact with short communication with foreshadowing to anticipate transitions between activities. (300:18-303:8)

What I do not know at this point, is whether [Student]’s emotional problems were correctly addressed with an educational program as the law presumes. The extent and interpretation of the word "primarily" contained in the regulation is at issue. For this, I need to analyze [Student]’s educational performance and the strategies implemented to provide educational services. To make a determination on this, I need more information about the educational program that the District pursued. While the District admits to pursuing an educational program for [Student] based on his classification as an emotionally disturbed child, it considered but eventually tossed aside the PDD diagnosis as an element of [Student]’s programming. The M-Team report constructed immediately after the re-evaluation that considered PDD doesn’t even have the autism box checked. Hence another hearing is necessary to explore the nature of [Student]’s educational program.

In addition to arguing that [Student] was a child with an emotional disturbance, it also argued that the Parent did not notify it that [Student] had "autism" until December 10, 1999 and that [Student] had never been identified as having autism. (21:10-20)

In the face of the three documented visits by [Student] to the hospital with subsequent meetings with school personnel, the diagnosis by Dr. Musholt in 1999 and Dr. Witkovsky in 1997 that [Student] had a form of PDD, the District’s admission that it considered PDD in its re-evaluation in April of 1998, and the behavior documented by the District that comports with a child with autism as it is legally defined, the assertion by the District that [Student] did not have autism is unacceptable. This argument implies that either the District is not aware of the autistic spectrum or purposely used the vagaries of the language in the regulations to avoid providing an individualized education program to [Student]. It attempts to place the "child find" and evaluation requirement that the District bears with the Parent. This argument is discarded.

Likewise, the District’s attempt to re-evaluate [Student], not after one of his trips to the hospital or one of his several aggressive outbursts, but after his Parent shows up at an IEP meeting with her attorney is also unacceptable. The previous re-evaluation occurred in April 1998 when the District considered PDD. Another three-year re-evaluation is needed by April 2001. The District was seeking a re-evaluation only four months after [Student]’s seven-month stay in Mendota that resulted in a renewed diagnosis of PDD and was conveyed to the District through an IEP meeting at the hospital. The District could have requested an evaluation as part of the remedy of this hearing process, but did not. Again, this effort to have [Student] re-evaluated is discarded as not probative as it is seen as a procedural attempt to stave off a hearing and not a request for additional information to determine whether [Student] had PDD, a fact that it considered in its previous re-evaluation and had been reaffirmed.

1. [Student] is a child with an emotional disability as defined in Wis. Admin. Code § PI 11.35(2)(g) and 34 CFR§300.7(c)(4).
2. [Student] is a child with autism as defined in Wis. Admin. Code § PI 11.35(i) and 34 CFR§300.7(c)(1)(i) and (ii).

Dated at Madison, Wisconsin on July 21, 2000.