The parties to the proceeding are:

The Department of Public Instruction (DPI) received a due process request pursuant to Wis. Stat. § 115.80 from the parents of [Student] (Parents) on July 24, 2000 alleging a denial of a free and appropriate public education (FAPE) as guaranteed in the Individuals with Disabilities Education Act (IDEA), 20 USC 1400, 34 CFR § 300.13 and § 300.300 and Wis. Stat. § 115.80. This case was assigned # LEA-00-034. A pre-hearing teleconference was scheduled and held for July 28, 2000 and a tentative hearing was set for September 18 and 19, 2000 and a pre-hearing briefing schedule was determined.

On August 18, 2000, the District filed a motion to dismiss or make the Parent's claims clearer. A teleconference was held on August 25, 2000 and the request for dismissal and clarity was denied. The remedy for any lack of clarity in this request was determined to be a longer hearing within the 45-day requirement found in 34 CFR 300.511 and Wis. Stat. § 115.80(6). The District requested some of the student’s medical records, which was granted.

On August 28, 2000, this Administrative Law Judge (ALJ) issued an order with a limited medical record release and formalized new hearing and decision dates.

On September 14, 2000, this ALJ issued an order canceling the hearing at the request of the parties in order that they could pursue settlement negotiations. The decision date of October 6, 2000 was not removed.

On October 3, 2000, the Department of Public Instruction received a request from the Fond Du Lac School District for an expedited hearing in order to seek an interim alternative educational setting under 34 CFR § 300.520(a)(2). This case was assigned # LEA-00-043.

On October 4, 2000, a pre-hearing conference was held on LEA-00-043. At this time the undersigned ALJ combined the two cases as similar witnesses would be needed and the hearing dates of both were to be scheduled as soon as calendars would allow. The District objected to this consolidation. A briefing schedule and decision date for November 22, 2000 was noticed.

On October 17, 2000, the Parents filed a motion for a stay-put placement. The District filed an immediate response and was given four days to supplement its response but did not do so. Both parties were notified that this matter would be taken up at the hearing a week later as it had similar evidentiary concerns as the interim alternative educational placement already scheduled for a hearing.

Two days of hearings were held on Wednesday October 25, 2000 and Thursday October 26, 2000. A third day was necessary and scheduled at the end of the second day for November 6, 2000.

After the second day of hearings, this ALJ, using authority found in 34 CFR 300.521, issued an order on the record directing the child to be educated at the Winnebago Mental Health Institute as an interim alternative educational setting to secure an emotional behavioral assessment. This was formalized in a written order on October 30, 2000.

This ALJ found that the District had proven with substantial evidence that the current placement for the child was likely to result in injury; the current placement was inappropriate because the vendor providing community services was not a willing party, the District had made reasonable efforts to limit the risk of harm, and the proposed alternative would enable the child’s IEP to be implemented satisfactorily. This served to deny the Parent's stay-put motion and dispatch LEA-00-043, the District's expedited request. The ALJ found that the interim alternative educational setting was a specific exception to the stay-put obligation to keep a child in his current placement pending the resolution of a due process contest. See 64 FR 12620.

The third day of hearings served to delay the briefing schedule and decision date. This was also noticed at the end of the second day of the hearing. The decision date was extended to December 4, 2000.

The Parents declined to enroll their child in the interim alternative educational setting. The child has not been educated outside the home since that time.

1. [Student] (Student) is a 17-year-old boy that is a child with a disability under 34 CFR § 300.7. Specifically, the student is a child that has been diagnosed with a Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS), Attention Deficit Hyperactivity Disorder (ADHD), and Oppositional Defiant Disorder. He has a moderate to severe cognitive disability. (853:13-24) He has a short attention span and his behavior can appear unpredictable (854). The student receives special education services 100 percent of the time.
2. The student has been under the care of a child psychiatrist, Dr. John Korger, for eight years (855:9-10) and is often medicated to address his behavior. This medication has had two deleterious effects: 1) It has inserted another variable in [Student]'s behavior. Uncontroverted testimony revealed that the student's medication was intermittently changing and that changes had occurred in November 1999 and the spring of 2000. The District was unaware of the change in medications. The student's behavior had become more aggressive due to the medications; and 2) it has caused him to gain weight that has complicated the physical management of his behavior. (855:20-869:25)
3. The student has been educated in the Fond Du Lac School District (FDLSD) since September 1986. During the 1999-2000 School year he was placed at Theisen Middle School, even though his age appropriate non-disabled peers attend Goodrich High School. During the 1999-2000 school year, there was no CD licensed teacher at Goodrich, Fond Du Lac's only high school (350:15-24). Mr. Donald Kohlman was transferred to Goodrich from Theisen for the 2000-01 school year.
4. Other children in the student's classroom at Theisen were medically fragile which made staff fearful that the student would injure them either through an outburst or through the student's clumsiness and lack of fine motor skills. A special time-out room was dedicated at this school for the student (940 - 941) in order to help de-escalate behavior. Ms. Katherine Montgomery was his special education teacher during this school year and the student had a one-to-one aid.
5. There was a daily log used to document the student's behavior during the 1999-2000 school year. The relationship between home and school, parents and teachers seemed to be working though most of this school year. In addition, the IEP team met several times to consider the 1999-2000 IEP implementation and to construct an IEP for the 2000-01. (302 - 315)
6. The student is prone to outbursts and escalating aggressive behavior. Testimony was received that detailed the student engaged in some form of aggressive behavior on 51 out of 111 school days. The student hit and intimidated various staff at various times. School personnel and caregivers were fearful for the safety of the student, of the student's classmates and for their own safety. School personnel were hit during the student's outbursts.
7. On March 21, 2000, the student was involved in an incident where his aggressive behavior escalated while being transported on a school outing. The student was placed in a hold in order to control the child's outburst by Mr. Donald Kohlman who was both the driver of the van and the child's teacher. The child's arm was broken due to the hold placed on him.
8. At this point, the District contracted with Todd Stevens and Associates (TSA) to provide community experience services for the rest of the school year. This relationship was later extended through the summer and into the 2000-01 school year. (711:25 - 714:20)
9. Several IEP meetings were held during the 1999-2000 school year to monitor the student's progress. At the end of the school year, the District recommended that the student return to Theisen Middle School with TSA providing community experience services.
10. The student was disciplined through a suspension for five days on September 15, 2000 for inappropriate conduct with a female employee of TSA. The District did not provide educational services during this suspension but did assemble another placement at Goodrich High School in the morning and contracted with TSA in the afternoon. The TSA service provided a two-to-one staff to student ratio.
11. This new experimental placement did not last a week. While the student had a brief experience at the high school, an eruption at the end of that week caused TSA to reassess its services for the School District.
12. The student was disciplined again on September 29, 2000 when a 10-day suspension was effected. The District filed for an interim alternative educational setting at that time and the child has not received educational services since that time.

The Student is a complex and a challenging child to educate. (39:13 and 42:16-19) There is agreement on that fact. What also is painfully clear is that many of the critical parties in the delivery of educational services do not seem to have the full picture of the student. Witness after witness noted the student's unpredictability as if they are unaware of the child's PDD-NOS and what that means. This is a profound omission.

What we have here is a failure to communicate. PDD-NOS is a communication disorder on the autism spectrum and classified as a disability under 34 CFR § 300.7. See Student v. Wisconsin Dells School District, LEA 00-020. This student sees a reality that we do not see. His actions are driven through his own highways. We apply our reality to his actions and they appear impulsive, unpredictable, roaring out of nowhere.

To complicate matters, the District is in pursuit of an educational program apparently without the medication and PDD-NOS information. The District learned of this information at the hearing after testimony offered by Dr. Korger. The Parents have failed their son's education by not communicating this information to the District. It is not the District’s responsibility to puncture the child’s legally privileged relationships. It is dumbfounding that the parents could attend all of the IEP meetings and not share information about medication changes and Dr. Korger's diagnosis.

The diagnosis of PDD-NOS itself is less important than the clues it leaves to the construction of an appropriate educational program. Make no mistake, even with this information, constructing an educational program is no easy task. The IEP team must still cut through the fog applied by the child's changing medications to address his attention deficit and aggressiveness, and the cognitive disability that limits his ability to help caregivers.

The PDD-NOS recognition is elemental, however. It is like a math problem: if you miscalculate at the beginning, you can do the rest of the problem correctly and you will still get the problem wrong.

The failure to communicate has been costly. First, there has been a human cost. People have been hurt trying to educate this child. Testimony was received that Ailene Ostermeier, an employee of TSA was hit in the face. She also testified how she tried to corral the student in a McDonald's Restaurant on August 7, 2000, preventing him from running out in the street during an outburst. Patty Helein, another TSA employee, also testified to this eruption and to others. The student kicked her in the knee, damaging ligaments. The student threatened Katherine Montgomery, the student’s special education teacher. Debra Elligen, a school administrator, testified the student hit her. Joe Quaintenance, the owner of TSA and a person in the business of providing services to people with disabilities, declines to work with the student unless he can get some form of liability exemption for injuries to his employees.

In addition, the student has been hurt during these outbursts and other students have been hurt -- at one point the student pulled the shirt up of another female student. Joe Quaintenance was fearful that the student would drop to his knees on hard tile causing injury to him. It should also be noted that the witnesses view this behavior as uncontrollable and generally not vindictive. But the picture is painted of an increasingly aggressive child erupting without warning and causing injury to him and others.

There has also been a cost to the student's educational program. Time has been lost. We are faced with a 17-year-old student that is nearing the end of his education in the District and the District admits that it can't find the "magic solution" to the student's educational needs. (31:9-17)

Out of this fog comes the instant matter, a due process hearing where the Parents allege that the Fond Du Lac School District denied their son a free and appropriate public education guaranteed in the IDEA, 20 USC 1400 et.seq. They allege that: 1) the child's Individualized Education Plan (IEP), constructed according to 34 CFR § 300.346, was not implemented properly, and 2) that the child was not placed in the least restrictive environment guaranteed in 34 CFR § 300.550.

To return to the analogy, the disagreement over the child's educational program is focused not on the beginning where the program went off track, but in the rest of the problem. It is here that both parties seek resolution through fact determination found in due process.

The Parents claim that a school employee improperly restrained the student during the March 21, 2000 incident while the student was being transported. The use of restraints was included in the child's safety plan included with the 1999-2000 IEP. This incident resulted in the child’s arm being broken.

The hold placed on the child during the outburst was not sanctioned by the child's IEP. Given the fact that the student was in the middle of an outburst in a moving vehicle, however, I do not find a denial of FAPE here. Donald Kohlman, the driver of the van and the person who placed the student in the unauthorized hold, reacted properly in a difficult situation. His testimony was credible.

The parents claim to the contrary would require that the child always be flanked by two people to make an appropriate hold in the eventuality of an explosive outburst or that no restraint be offered as the child escalated, endangering other children and staff in a moving vehicle. Neither option was reasonable. In fact, I cannot think of how this student, at his size and aggressive nature during an outburst, could be contained in a van without some form of restraint not sanctioned in the child's IEP. The broken elbow was unfortunate but no violation FAPE was triggered.

The Parents claim that the child did not receive the community experience he needed and offered in his IEP. They allege that transition services were rarely delivered. This is contradicted by the testimony of Mr. Kohlman and of course, TSA. The child was taken to Dominoes to fold pizza boxes. He was taken to McDonald's to put Happy Meal items together. These are community experiences but were limited by the student's limited fine motor skills and short attention span. TSA continued its efforts to provide community experiences after the van incident where the student broke his arm. TSA's efforts began in April 2000, continued through the summer and resumed in the fall of 2000. The District was dealing with a child that was becoming increasingly aggressive and prone to outbursts; some alteration was necessary. Again, no denial of a FAPE was shown here.

The Parents claim that the District misused time-outs. They claim that the District overly used them to the point of isolating the child. Their claim is largely reliant upon a wrong number written down on the student's log sheet. It is true that the District created a small de-escalation room for the student at Theisen for the student. The student would go there frequently. For this determination, the testimony of Ms. Katherine Montgomery, the student's special education teacher is found credible. No denial of a FAPE is registered here.

The Parents make the odd claim that the District "misused consultants". By misuse, the Parents imply that Dr. Sweet was asked to give advice and then it was ignored. First, this is contradicted by testimony of TSA that some of his recommendations were followed. Second, advice is just that, advice. No presumption of implementation need be construed. Multiple consultants may give conflicting advice. Ignoring consultant advice may be unwise, but it will stand on the merit of the consultation and its ability to improve the educational program for the child. Consultants are only as good as their advice and only if the advice is implemented. In this case, Dr. Mark Sweet knew of the student's autistic tendencies but dismissed them. (883:14-20) His consultation was uninformed like many of the student's educational providers.

The parents claim that occupational therapy was not sufficiently offered. This claim is contradicted by the school's occupational therapist, Laurie Miller, in testimony. I find her credible, the offering of OT services sufficient and no denial of a FAPE is registered here.

The parents claim that the District's offer to place the child in Theisen Middle School for the 2000-01 school year was not the least restrictive environment. There is no doubt that a placement with a specially built room for time-outs is restrictive. A two-to-one caregiver to student ratio in an isolated room, as TSA constructed, is restrictive. The student gets special education services for 100 percent of the time. The question is how restrictive should a placement be when the child is prone to increasingly aggressive, spontaneous but unintentional outbursts that have proven to result in injuries to staff, the student and other students?

Some restriction is not only appropriate; it is necessary. It is this student's unique need. For this determination, the agreement with TSA proved critical. TSA provided necessary restricted supervision over the student in different areas to allow for social interaction. The District appropriately restricted the student's environment, as his outbursts became more aggressive. Taken together, I find that the student was educated in the least restrictive environment to the maximum extent appropriate. There is a premium to be placed on safety at school and more cogently, the protection of other students from injury. The risk for injury here is proven. No denial of a FAPE is shown and an appropriate placement was offered as required by 34 CFR 300.550.

This student needs a behavioral evaluation. Something has changed here, whether it is the medication or something else. The student’s psychiatrist recommended the Waterwood School and testimony was taken to its sufficiency. This is the starting point in reconstructing this child's educational program. In Joe Quaintenance's words, "We need to know more."

This exploration should be short term. If the behavioral assessment can be completed at home, that would be preferable. It should be done with the consultation of the child's psychiatrist. This child does not transition well. But if it cannot be accomplished due to non-financial impediments, then a short-term residential placement is required. I appreciate Dr. Korger's advice that there is moderate risk in moving the child out of the home. But the child is seventeen years old and it is time to construct an educational program acknowledging the unique cocktail of disabilities that present challenges with this child. It is time to take some risks if the District is to fulfill its responsibility to this student.

Any longer term recommendations are made subject to recommendations made by Waterwood School or a facsimile evaluation. It is expected that the child should be educated in the new Goodrich High School after it opens next fall. In the interim, Theisen Middle School is the appropriate placement for school-based programming. Theisen is chosen to limit the transition issues for the student and to use the time-out room.

Of more importance than the physical location of where the child is educated is who the one-to-one aid will be, as one will most certainly be needed. The District should plan on this person being with the student for the foreseeable future. Todd Steven and Associates has provided a constructive alternative for this student's educational program. It has provided an expertise sorely needed and not often found in school districts. But continuing is a private contract between the District and TSA and no determination is made here.

What is not envisioned here is some sort of case management by the hearing officer. That is not envisioned by the IDEA and is not pursued here. That would usurp the appropriate role of the IEP process and stunt the ability of teams of interested persons to arrive at a consensus. If the parties cannot agree on a justicible issue, then another hearing is appropriate.

1. The Fond Du Lac School District provided a free and appropriate public education to [Student].
2. The Fond Du Lac School District provided a placement in the least restrictive environment to [Student].

It is hereby ordered that the due process request made by the Parents of [Student] is dismissed.

Dated at Madison, Wisconsin on December 4, 2000.