The Parties to this proceeding are:

On May 15, 2000 the Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats. for [Student], a twelve-year-old 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 Individuals 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 (ALJ) determined that a bifurcated hearing process would be pursued with the first portion of the hearing scheduled for June 22 and 23, 2000. This hearing was noticed, held, briefed and a partial decision issued on July 21, 2000. Specifically, the undersigned ALJ determined that the Child had both autism and an emotional disturbance as interpreted by 34 CFR § 300.7. That partial decision is incorporated into this final decision in its entirety.

At the first 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. New witness lists and exhibits were noticed and this hearing was held. Post-hearing briefs were timely submitted and a final decision was determined to be due on August 23, 2000. This deadline was later extended by consent of all parties to August 31, 2000 to give the ALJ more time to review the record, but still issue a decision before the new academic year commenced.

1. [Student] is a child with a disability in need of special education services and is a resident of the Wisconsin Dells School District. He is a child with both an emotional disturbance and autism as legally defined in 34 CFR § 300.7.
2. On January 15, 1999, [Student] continued his educational program at the Pioneer School at the Mendota Mental Health Institution (MMHI) in Madison, Wisconsin (460:11). Ms. Joy Becker, a special education teacher, taught [Student] in a residential-classroom setting with five or six other students of varied disabilities for four and a half hours a day (476:25 – 477:7). Dr. Ed Musholt, a child psychologist at the facility, supported Ms. Becker (459:17 - 460:4 and 382:14 - 383:23). This instruction was successful as [Student]’s behavioral problems diminished to zero during the last two months at MMHI. This allowed academic work to be pursued (469:2 – 470:8).
3. On August 27, 1999 an IEP and Behavioral Intervention Program were drafted subsequent to a transition meeting held at the MMHI in anticipation of [Student]'s fifth grade enrollment in the District. (Exhibit D-1)
4. This August 27, 1999 IEP recommended [Student] be included in a regular fifth grade classroom at Lake Delton School for 70 percent of the time, noting that [Student] needed small group instruction and one-to-one assistance during language arts.
5. Ms. Laura Devine was [Student]'s special education teacher and Ms. Patricia Notes was his regular education teacher for his time at Lake Delton School.
6. The August 27, 1999 IEP noted that [Student] needed an "appropriate degree of control of environment and educational variables" for academic subjects. MMHI recommended and the IEP adopted strategies seeking to control [Student]'s behavior including a point system to earn benefits based on good behavior, tangible and non-tangible reinforcers, and verbal feedback and praise.
7. The District provided a pullout classroom of between 2-10 special education students for [Student]'s language arts and math instruction. A special education aid was also there to help Ms. Devine with the classroom as well as instruction in the fourth and fifth grade. In spite of this, the first three weeks of school at Lake Delton were difficult (15:6 - 17:24) (See Exhibit D-2).
8. Ms. Devine called to consult with Ms. Becker about [Student]'s documented oppositional behavior (18:2-5)(Exhibits D-2 and D-3). Ms. Becker believed that the District was not pursuing some recommendations that she had found successful, specifically the use of tangible reinforcers - concrete rewards for good behavior such as candy, stickers and shopping trips (484:4 - 14) - and the pursuit of academic goals without containing the poor behavior first. Ms. Becker told Ms. Devine that [Student] needed more support in unstructured settings, such as a playground (463:5 - 465:7).
9. On September 16, 1999, [Student] was involved in a series of incidents on the Lake Delton playground at lunchtime where he grabbed four different students by the neck, inflicting scratches, and damaged a couple of bicycles and the interior of a police vehicle. In addition, [Student] was defiant and aggressive earlier in the day on the playground and in the classroom. [Student] was placed on a three-day suspension - September 17, 20 and 21, 1999 - for this behavior. (Exhibit D-20)
10. Instead of returning [Student] to Lake Delton School after his suspension, the Parent placed him in MMHI again for a short-term stay for behavioral stabilization. (375:24 - 376:2) Dr. Ed Musholt of MMHI believed that [Student] should have been returned to Lake Delton for reintegration. (375:14 - 16)
11. As part of the effort to get [Student] back in school, employees of MMHI and the District agreed to try a trial placement at the Sauk County Adolescent Needs (SCAN) school located in Baraboo, Wisconsin, as [Student] was still technically a patient at MMHI. Although [Student] did not live in Sauk County, SCAN was geared towards emotionally disturbed children between the ages of 12-17 with classes of seven or eight students (60:18 - 24 and 62:8 -10). After an initial Friday visit by [Student] and others from MMHI to the school on October 9, 1999 an IEP was constructed for a placement at SCAN on October 18, 1999.
12. SCAN is a transitional facility that seeks to return children in the regular classroom. The October 18, 1999 IEP envisioned this possibility for [Student] as well, noting in the IEP that he would be placed in a regular classroom during the second semester if his poor behaviors were controlled. SCAN provided three hours of instruction to [Student] each morning – from nine to noon – in one-half hour increments. [Student], along with other children, was dismissed around 2:30 p.m. (70:9 - 71:4). Point sheets, tangible reinforcers/level system and verbal feedback were to be used to provide the highly structured program that MMHI had used successfully and that [Student] needed. (Exhibit D-27).
13. [Student] lasted three weeks at SCAN. It was apparent to the Parent and the lead teacher, Ms. Miriam Miller, that this trial placement wasn't working. (77:2 - 21) [Student]'s educational needs were "staff-intensive". (73:22 - 74:22) In addition, [Student] was emotionally more immature than his older and rougher classmates and it was feared that he would model the behavior (377:11 - 15).
14. A meeting was held on November 11, 1999 in which the trial placement at SCAN was dissolved with the consent of both SCAN and the Parent. (77:2 - 79:17) No evidence was offered that showed that any IEP meeting was held between October 18, 1999 through December 10, 1999.
15. For the next month, [Student] received no special education services and did not attend school, although an offer to return to SCAN was renewed. The District, through the efforts of its Pupil Services Director, Dr. Michael Hazelkorn, tried to find other educational placements for [Student] during this time. It called Juneau County Social Services in an unsuccessful effort to place [Student] in another residential treatment center and have the County pay for this expense. (501:4 - 502:10) It tried to return [Student] to MMHI and made the necessary arrangements but the Parent objected (552:19 – 554:25). Both of these placements would have been restrictive residential placements. As the IEP team did not meet during this time, no consensus was evident to determine whether these attempted placements were appropriate.
16. On December 10, 1999, a contentious four-hour IEP meeting was held to determine where and how [Student] was to be educated. Out of this meeting an IEP was developed that stipulated six hours of home instruction a week to be provided by Ms. Geraldine Potter, a retired classroom special education teacher, for the District (Exhibit D-11). In addition, [Student] was allowed to participate in field trips with age-appropriate peers at the end of the school year.
17. This program was implemented from December 10, 1999 through the end of the school year and justified by [Student]’s "inability to cope with groups and noise." Educational improvement was shown during this program. (Exhibits D-13 and D-14)
18. The District provided occupational therapy throughout the school year and in all three of his placements - Lake Delton, SCAN and home.

[Student] is a unique twelve-year-old child to educate. By all accounts, he can be a bright, creative intelligent boy. (Exhibits D-1 and D-27) He is enthusiastically interested in science, likes to read and can contribute in class. Yet due to the co-morbid disabilities legally classified as emotional disturbance and autism, he presents behavioral problems that resulted in several inappropriate outbursts during the 1999-2000 school year and in one instance, resulted in the physical harm to other children and property. These outbursts appear unprovoked and are intense.

The theme of [Student]’s educational placement during the 1999-2000 school year is one of diminishment of educational program and isolation from peers. What started out as a 70 percent inclusion with a regular educational program in September was whittled away to six hours of home instruction a week by Christmas. This journey included three different placements, a stay at MMHI and a month when [Student] was receiving no education at all. All for an autistic child that all parties agree needs consistently applied structure and behavioral modification in order to succeed in his educational program.

[Student]’s Parent argues that the educational program administered to [Student] by the District constituted a denial of a free and appropriate public education by 1) providing a placement that was not the least restrictive environment; 2) not providing the necessary and unique services required, and 3) providing a placement – the home placement – that did not provide enough of an educational benefit. The District denied these claims.

IDEA requires that school districts provide a placement that educates disabled children with their non-disabled peers to the maximum extent appropriate with the use of supplementary aids and services. 20 USC 1412(5)(A) and 34 CFR § 300.550(b)(1). What is obvious is that [Student]’s August 27, 1999 IEP integrated [Student] too much into the regular classroom and that expectations were too high. [Student] started his education during the 1999-2000 school year with an IEP that was not restrictive enough.

The beginning of a school year is a transition time for all children. As the District should have known, [Student], as a child with an emotional disturbance and autism, has trouble with transitions. What was appropriate for [Student] at the end of August at MMHI was not appropriate for [Student] two weeks later in the less restrictive Lake Delton School with new teachers, peers and expectations. [Student] should have started out with more structure and been rewarded with more freedom as he earned it.

The District is only partly culpable for this failing however. The IEP was supported by the MMHI as reasonably constructed to provide an educational benefit and was based on MMHI’s experience teaching [Student] over the previous six months. As the previous school district providing services to [Student], it was reasonable to rely on the opinion of MMHI in late August 1999 and that [Student] should be included in a regular classroom 70 percent of the time with pull-outs and limited help from an aide.

There are two instances where the District failed [Student] during the first three weeks of school. First, the District allowed [Student] to play on the playground. The District should have known that [Student] – a student with autism, sensitive to noise and in need of structured settings – would have difficulty in unstructured settings like the playground, cafeteria and physical education. The August 27, 1999 IEP asserts that it "provides the appriate (sic) degree of control of environment and educational variables that [Student] needs during certain academic subjects." (Exhibit D-1) Why the District would seek to calibrate the rigor applied to [Student]’s environment in the academic setting, but let him wander the playground with his unique disability is perplexing.

Not one of [Student]’s attending professionals prior to his enrollment at Lake Delton is at all surprised that [Student] would be disruptive in the playground setting. (360:7 – 19, 404:16 – 19, 465:16 – 466:14) The District should have been more attentive. (See also Testimony of [Student]’s third grade teacher, Ms. Barbara Lee from the first hearing 64:1 – 9)

Second, [Student]’s special education teacher, Ms. Laura Devine failed to implement the reinforcers stipulated in the IEP at times, noting the effect of giving one child a reward and not others (463:4 – 464:2). The testimony of Ms. Joy Becker is credible in its specificity on this subject. Obviously, refraining from using a tool recommended in an IEP because of its effect on other children undermines the "individualized" nature of the educational program and handicaps the instructor in providing an educational benefit.

Yet these instances, in their role in propelling [Student] out of the least restrictive environment of the regular classroom, do not amount to a denial of FAPE. The District’s placement decision, while mistaken, was understandable given the initial consensus overestimation of [Student]’s ability to adjust from the more restrictive MMHI setting. [Student]’s three-day suspension was justified. On the other hand, whenever a District cannot or will not follow an IEP some accounting is necessary. This is more appropriately addressed later in the sufficiency of the educational program.

At this point, the District was obligated to provide a continuum of alternative placements under 34 CFR § 300.551. This continuum must include alternative placements, such as the physical location where the child will be educated, and supplementary services needed to augment the placement. 34 CFR § 300.551(b)(1) and (2).

The Comments to these regulations note that they "do not require that a child has to fail in the less restrictive options on the continuum before that child can be placed in a setting that is appropriate to his or her needs". However, a placement team is required to "consider whether the child can be educated in less restrictive settings with the use of appropriate supplementary aids and services and make a more restrictive placement only when they conclude that education in the less restrictive setting with appropriate supplementary aids and services cannot be achieved satisfactorily" 64 FR 12638. In other words, the placement continuum seeks the least restrictive environment with the use of supplemental aids and services, but that each option along the continuum need not be tried.

The District was trying to find a suitable location for [Student]’s educational program in late September and early October. It is unclear how these decisions were being made, as Dr. Michael Hazelkorn, the Director of Pupil Services for the District was trying to find a location for [Student], apparently assuming that [Student] could not return to Lake Delton. There is no evidence to indicate that the IEP team was meeting formally or informally to consider a different kind of Lake Delton placement or the appropriateness of supplemental aids and services in whatever setting. What is certain is that after many phone calls and a visit by [Student] and MMHI personnel, SCAN was thought to provide the appropriate placement as it provided the structure through tangible reinforcers and point system that [Student] needed to all of its students. The October 18, 1999 IEP sanctioned this placement.

The SCAN placement did not work for two reasons: First, [Student] was younger than most at the school and was immature. His problems were different than the usual SCAN kid that has a problem with the law or drugs. And he had a problem relating to children that were older than him, effectively isolating him. He simply didn’t fit in (202:1 – 204:5). Second, [Student]’s education was even more staff-intensive than what SCAN provided in its small group format. (73:22 - 74:22) Notably, this information comes from the District’s witnesses.

At this point, the District should have known three things in its attempt to provide [Student] with the least restrictive placement. [Student]’s educational program would be 1) staff-intensive – perhaps an aide would be necessary, 2) with age-appropriate peers in order to avoid the discomforting SCAN experience, and 3) with much structure at the beginning of a placement to compensate for his difficulty with transitions and to get his behavior under control first. This might have prevented [Student] from venturing into unstructured venues like a playground and required less time in the regular classroom than proposed in the August 27, 1999 IEP.

Although the District should have known of these specific needs, it continued to seek more restrictive residential placements outside the boundaries of the school district and beyond its responsibility to provide FAPE. Although these more restrictive placements might have provided an educational benefit, there was no evidence offered to show that any supplemental aids or services were considered at this point to direct [Student] to a less restrictive placement. The testimony of Dr. Michael Hazelkorn was not credible.

After a month of idleness where SCAN was [Student]’s formal placement as there was no other sanctioned option, and after a tense four-hour IEP meeting on December 10, 1999, the District offered a home placement for six hours a week. The home placement was the most restrictive placement possible because it allowed no ability for [Student] to be educated with his non-disabled peers, except for the field trip opportunities at the end of the school year.

There was no evidence offered to explain why the District thought that a child that started out, mistakenly, in the regular classroom for 70 percent of the time, could now only be appropriately placed in the most restrictive environment possible. Again, there was no offering of why [Student] could not return to District schools with supplemental services that provided more attention to the unique challenges that educating [Student] presents. While it was asserted that an aide was considered at the December IEP meeting, it was not explained why it was ruled out. What evidence that was offered showed that [Student], if given a transition period, structure and attention, could benefit from a more inclusive setting – that was both the experience and testimony of MMHI. (See Bd. of Ed. Of LaGrange School Dist. No. 105 v. Ill. State Bd. of Education, et.al., 30 IDELR 891 (7^th Cir., 1999)) The District pursued and the parent consented to a placement as if all the progress at MMHI had never happened.

The District must meet its burden of proof with a preponderance of the evidence as noted in Wis.Stats. § 115.80(5). The District’s brief argues that the burden of proof is on the parent and cites numerous authority around the country regarding the provision of FAPE. In fact, the 7^th Circuit has not weighed in on this issue and other circuits are split. See T.H. v. Board of Educ. of Palatine Community Consolidated Sch. Dist. 30 IDELR 764 (1999). But to the issue of least restrictive environment, the burden rests clearly with the District:

By not fully explaining its consideration of supplemental aids and services in the face of this dramatic and precipitous change in placement from a 70 percent placement in a regular classroom to a home placement, it has failed to prove that it fully offered a continuum of placement in accordance with 34 CFR § 300.551(b)(2). The District has not met its burden of proving that it provided a least restrictive environment by a preponderance of the evidence. Due to the primacy of this issue to the other issues the District must also carry the more general burden and prove it provided a free and appropriate public education.

As mentioned, a supplemental aid or service might have proven beneficial to [Student] in his right to be educated to the maximum extent appropriate with non-disabled peers. In this context, a supplemental aid or service would most likely be a full-time or ¾ aide to help [Student] cope within the less restrictive nature of a public school setting and hopefully someday, a regular classroom.

But an aide does more than allow [Student] to be reintegrated into a public school setting; it also provides an educational benefit that [Student] needs. According to [Student]’s psychiatrist, Dr. Michael Witkovsky, children with autism like [Student] need to be helped through transitions between subjects and environments. [Student] needs help with his academics and needs help with his social interactions. As a child with autism, [Student] doesn’t communicate with others well. Someone needs to help [Student] through his behavioral issues – that is a prerequisite for the child to receive an educational benefit.

It is the obligation of the District to provide "access to specialized instruction and related services which are individually designed to provide an educational benefit" Bd. of Educ. v. Rowley 458 U.S. 181, at 201 (1982). Beyond Rowley, this effort at providing a "floor of educational opportunity" is evident in IDEA and its regulations. See 34 CFR § 300.1(a). Several examples of the District’s failures to provide access are evident.

First, when [Student] was home alone for the month in late-November and early-December, he was not receiving educational services from the District (only occupational therapy). His formal placement at the time was at SCAN, a placement that everyone admits "didn’t fit".

As noted earlier, [Student] was allowed to wander the playground at Lake Delton School as if the District was unaware of his unique sensitivity to unstructured environments. Specific tools included in his IEP were intermittently used. In other words, much of the individualized nature of the child’s flawed IEP was ignored. In this case, [Student]’s educational program was not being implemented in a specialized way.

Finally, the District knew, or should have known of the difficulties of educating a child with autism. [Student] is driven by an internal world that perceives things as threatening that non-disabled children have synthesized and experienced as non-threatening. This threat awareness promotes anxiety in spite of a normative intelligence. This unsuspecting anxiety may explode at times in situations that most people would consider "unprovoked". The task for educators is to foreshadow changes in the curriculum and the school day and to calm a child when anxiety overtakes him (346:10 – 350:10).

In addition, [Student] doesn’t process information in the same way as other children. When an instructor tells a classroom to find a page in a book, the task may seem simple to non-disabled children. To an autistic child, however, these same instructions might have to be broken down into several sets of instructions for [Student]– open the desk, find the book, open the book, turn the page, look for the page number, etc. This kind of instruction is staff intensive. (355:7 – 357:3)

The nature of [Student]’s disability makes him particularly reliant on another person to relate the classroom world to him. The District should have known this but did not provide this person until the home instruction placement was implemented.

Taking all three examples together – the failure of the District to provide any specialized education for a month, the District’s failure to implement the IEP at the most transitional time in [Student]’s educational program, and the District’s failure to understand that a child like [Student] needs another person to help him receive an educational benefit – there has been a denial of access to specialized instruction. If these examples don’t exhibit a denial of access to specialized instruction, then there is no meaning to Rowley. Together they show that the District failed to provide a basic floor of educational opportunity for [Student] during the 1999-2000 school year.

The District may argue that it was primarily concerned with [Student]’s emotional disturbance in conformance with 34 CFR 300.7(c)(1)(i). While the regulations offer Districts some relief in labeling children and crafting an IEP, no legislative intent was discovered to imply that for autistic children exceptions to the individualized nature of their program were allowable and implementation of the IEP discretionary even when the school district knew of their disability.

The Parent also argues that [Student]’s homebound placement was insufficient to provide an educational benefit as it only provided six hours a week of instruction with Ms. Gerry Potter, a retired classroom special education teacher in the District. The Parent argues that this placement is a denial of FAPE.

While six hours of home instruction a week may not seem like much after receiving at least fifteen hours a week at SCAN, the Parent offered no testimony explaining this assertion. The District, on the other hand, provided Dr. Bonnie McCarty, who testified that six hours a week was sufficient. (227:16 – 228:25) More compelling, however, was the experience and insight the District provided [Student]’s educational program through Ms. Gerry Potter. There is no doubt that under Ms. Potter’s instruction, [Student] received an educational benefit – as much as can be expected with a home placement.

In regards to the sufficiency of the homebound placement, the District has met its burden. The problem with the homebound placement wasn’t with what it did, but that it was not the least restrictive environment for [Student]. [Student] needs to understand the world around him and be educated with other children.

It is clear that the District did not provide [Student] with a free and appropriate public education by denying him a placement in the least restrictive environment and by denying him access to the specialized aid and services that he needs to get an educational benefit.

It’s as if finding itself in a skid with [Student]’s educational program, the District did not steer through the trouble but instead took its hands off the wheel, allowing [Student]’s educational program to spin out of control. Issuing a remedy intended to correct such a failure in judgement is not easy.

For guidance, attention should be paid to Ms. Potter, her 34 years of experience, her experience with [Student] and the judgement exhibited during her testimony for the District:

[Student] should go back to an age-appropriate public school in a special education classroom in the Wisconsin Dells School District. He should first become accustomed to a full-time aide and a new school and classmates before any integration into the regular classroom be attempted. Playgrounds, lunchrooms and physical education should be limited and monitored closely with an aide. The District should attempt to control [Student]’s behavior before academic instruction. This is where [Student]’s educational program should start. [Student]’s IEP team should meet more frequently to calibrate any changes to his curriculum.

As to the Parent’s prayers for damages to be levied against the District that were made in the request for a due process hearing, this ALJ does not have any authority for such a remedy.

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).
3. The Wisconsin Dells School District did not provide [Student] with a free and appropriate public education during the 1999-2000 school year.
4. The Wisconsin Dells School District did not provide a placement for [Student] in the least restrictive environment.
5. The Wisconsin Dells School District did not provide access to a specialized instruction and related services which were individually designed to provide educational benefit to [Student].
6. The Wisconsin Dells School District provided a sufficient number of hours of instruction in the homebound placement determined in the December 10, 1999 IEP.
7. [Student] is the prevailing party in this dispute.

It is hereby ordered that [Student] return to a special education classroom in an age-appropriate school in the Wisconsin Dells School District for the 2000-2001 school year with the services of a one-to-one aide to help in his academic and social education.

Dated at Madison, Wisconsin on August 31, 2000.

NOTICE OF APPEAL RIGHTS