Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On October 20, 2000, a prehearing conference was held in the above-captioned matter, Jeffrey D. Boldt, presiding. A hearing was set for November 14, 2000. The parties jointly sought postponement of the hearing and the case was heard on January 16, 2001. The deadline for a decision was extended to February 20, 2001. The parties filed post-hearing briefs, the last of which was received on February 9, 2001.

The Parties to this proceeding are:

1. [Student] (the Student) was born on xxxxx. The Student now resides in Necedah, Wisconsin, and is served by the Necedah School District (the District). He is currently enrolled in the fourth grade.

2. The Student has been identified as a "child with a disability" within the meaning of state and federal law. The District has identified [Student] as being a child with an "other health impairment" within the meaning of Wis. Stat. § 115.76(5)(a)(9). The parents assert that [Student] meets the definition related to a "cognitive disability" set forth in Wis. Stat. § 115.76(5)(a)(1).

3. The Student attended Necedah Schools off and on during the period between 1995 and 1998. In September of 1998, the Student was withdrawn and home-schooled. He was later enrolled in the public schools in Tucson, Arizona, when his parents moved there in February, 1999. The Student was subsequently enrolled in Hudson, Texas schools during the period of February 14 to March 28, 2000. There is no record of his attending any school during the period of March 28, 2000 to August 22, 2000. (Ex. 19)

4. On August 22, 2000, the Student again enrolled at Necedah Elementary School. (TR, p. 12)

5. The Student was well-known to the Necedah School District. The Student participated in the Birth to Three program for 2 ½ years. When he was four, the Student was placed in the Early Childhood program for speech and language. After a dispute about his placement and an aborted attempt at testing, on November 22, 1996, the parents withdrew the Student to home-school him. (Ex. 19)

6. [Student] again enrolled at Necedah Schools in February, 1998. The parents consented to the Student repeating first grade. After several delays in efforts to have the Student tested, consent from the parents was obtained on March 11, 1998. In April of 1998, the Student began to receive services through the Speech and Language and Cognitive Disabilities programs at Necedah Elementary. However, these services continued for only a short time, because the parents withdrew him from Necedah schools in September, 1998.

7. The Student did receive special education services consistently during the brief period in which he was enrolled in the Tucson, Arizona public schools (February, 1999 – February, 2000). The Student received services in Speech and Language, Cognitive Disabilities and Occupational Therapy during that year. The parents were well pleased with the services provided to the student pursuant to an IEP adopted in October, 1999, by the Tucson Unified School District. (Ex. 1)

8. The Student's mother testified that the family agreed with and were satisfied with the Arizona IEP. (TR, p. 97) However, the Student argues that the adoption of the Tucson, Arizona IEP by the Necedah School District was inappropriate. The record does not support this claim. The Student was enrolled in Necedah schools on August 22, 2000. That same day, Necedah schools had the parents sign a release and forwarded a request for information to the Tucson Unified District. (Ex.2, TR, p.13) Subsequent efforts to obtain information from the Tucson schools were made on August 30, and 31. On September 9, 2000, the District received a copy of the Tucson IEP. The District’s efforts to obtain additional testing records, were further complicated by the fact that the Student had been last enrolled in Hudson, Texas schools. All of the Student’s records were received by October 23, 2000. Under these circumstances, the District’s efforts to obtain the Student’s records were appropriate.

9. On September 19, 2000, the IEP team in the Necedah District met. The District suggested adoption of the Tucson IEP as permitted by the law. (TR, p. 21) The parents were frustrated that the District was not planning to undertake any testing of its own. Subsequently, at the September 19, 2000, IEP meeting the parties agreed that the Student would be reevaluated. (TR, pp. 21 and 197) The District undertook the reevaluation of the Student. Further, the District found the Student to be in need of additional services, primarily pull-out instruction from a special education teacher. The parents were aware that the District was providing this additional service within one week of the September 19, 2000, IEP meeting. The District’s preliminary decision to adopt the Tucson IEP was lawful and appropriate under these circumstances.

10. The parties agree that the IEP currently in place is the least restrictive alternative for the Student at the present time. The Student is currently in regular education classrooms for music, physical education, specials, lunch, and recess. (TR, p. 27) He receives the remaining core instruction from special education teachers who have cognitive disabilities certification. (TR, pp. 138 and 80) The IEP has measurable goals identifying progress in all of the core subjects, including math, reading, writing, science, and social studies. (Ex. 16) Tammy Stowers-Tonn, Necedah School District Psychologist, testified that the current IEP was and is appropriate for the Student. (TR, pp. 30 and 57) Further, the Student's own expert witness, Dr. Porter, testified that the District was employing appropriate methods of instruction, specifically small-group and one-to-one teaching, and grade level appropriate material that were specifically suited for the Student. Dr. Porter testified that his independent educational evaluation did not render a need for any changes or modifications to the existing IEP. (TR, p. 136) The Student's mother testified that the District is now dealing appropriately with the Student. (TR, p. 92) At hearing, the Student suggested no needed changes to the existing IEP.

11. One of the principal areas of dispute between the parties involved two incidents that occurred on a school bus in route to Necedah Schools. The first incident occurred on September 5, 2000, when the Student apparently unzipped his pants in front of other students. The District suspended the Student from using the bus, for three days to begin Thursday, September 7, 2000. (Ex. H-8) In the second incident, the Student was accused on October 4, 2000, of using bad language and causing a disturbance on the bus. The Student was suspended from bus service for a period of five days. (Ex. H-9) The Student continued attending school during both suspensions from the bus. While "transportation" can be a "related service" implicating special education services, in this case there was no impact on the Student's ability to achieve a FAPE, nor any disruption of services provided under his IEP as a result of either bus suspension. At no time did the bus suspensions result in the Student failing to attend either regular or special education classes at the school. (TR, pp. 32, 172 and 176)

12. The District did violate the procedural requirements of IDEA in connection with the incidents on the bus. The District notified a local policeman, Detective Strompolis from the Juneau County Sheriff's Department, after the September 5, 2000, bus incident. While the Student's mother informed the officer orally that the Student had special needs, the District failed to provide Strompolis with "copies of the special education and disciplinary records of the child" as required by 20 U.S.C. § 1415(k)(9)(A) and (B). (TR, p. 48) However, this had no impact on the status of any criminal charges, because none were filed. Further, this failure did not have an impact on an educational service provided to the Student.

13. The Petitioners also claim that the District failed to identify the Student's disability properly. However, all of the expert witnesses testified that the services received by the Student including the current placement are appropriate without regard to the label affixed to the Student's disability. Dr. Porter, the Petitioner's expert, testified that the Student's appropriate educational programming should be based upon his individual needs and not the label affixed to his disability or his test scores. (TR, p. 127) Based upon his evaluation, Dr. Porter testified that it would be appropriate to consider the Student as either "Other Health Impaired" or "Cognitively Disabled." (TR, p. 122) Dr. Porter specifically noted that the Student received most of his core instruction from a cognitive disabilities instructor. (TR, p. 122)

14. As described above, the parents of the Student obtained an Independent Educational Evaluation (IEE) from Dr. Porter of the Gunderson Clinic. The parents argue that the District should pay for this IEE. Considering the record as a whole, the hearing officer finds that there is no basis for requiring that the District pay for the IEE. Significantly, the District had not yet completed its evaluation at the time the parents originally undertook the evaluation by Dr. Porter. (TR, p. 114) At the time of the September 19, 2000 IEP meeting, the District sent the parents a Notice of Re-Evaluation and a Notice and Consent to Conduct Additional Tests. The parents did not return the signed form until October 30, 2000, despite repeated requests from the District for them to do so. (Ex. 5) Dr. Porter was initially referred for an evaluation in August, and then "re-referred" in October of 2000. "(TR, p. 114) The Student’s actual appointment with Dr. Porter occurred on December 6, 2000. Further, Dr. Porter's report did not recommend any significant changes in the Student's programming. (TR, p. 136) Under these circumstances, there is no basis in requiring that the District pay for the IEE.

15. The District has appropriately addressed the in-class behavioral problems of the Student. A behavior plan, emphasizing direct positive rewards, has been established. (Exs. 12 and 16) There is no dispute in the record that the plan has had a positive impact on the Student’s adjustment in class. (TR, 73-74; and p. 155)

16. The parents' argued in their complaint, but not in their brief, that the District encouraged the parents to leave the District rather than providing the Student with appropriate programming. Both Ms. Stowers-Tonn and Mr. Heesch testified that Detective Strompolis simply inquired why the parties had returned to the District, given their complaints about Necedah Schools. (TR, pp. 34 and 171) This comment, while unfortunate, had no bearing on the Student or his obtaining a FAPE.

While the Student raised numerous reasonable concerns about actions of the District, the record does not support a finding that any of the issues raised by the Student resulted in a failure to provide FAPE to the Student. The District could have handled the bus incident better. Specifically, it would have been helpful to have provided the information relating to the Student's disability to police after they were involved. As Dr. Porter opined, the "lecture" given to the Student by the police detective probably had limited utility. However, the bus suspensions were appropriate, particularly in light of the District’s need to protect the other children on the bus. Further, after the suspensions from the bus, the Student had no further significant behavioral problems on the bus or in class. Finally, the District felt obligated to report the incident that had sexual overtones due to the mandatory reporting requirement. Wis. Stat. § 48.981(2), Stats.

The Student’s arguments relating to adoption of the Tucson, Arizona IEP are confusing. On the one hand, the parents were happy with services offered under that IEP and were convinced that the Student was making educational progress. On the other hand, the parents were not happy when Necedah lawfully sought to implement the Tucson IEP on an interim basis. The District acted promptly to obtain and implement the Tucson IEP, and undertook a reevaluation of the Student’s needs and services almost immediately thereafter. There was no denial of a FAPE to the Student in implementing the Tucson IEP on an interim basis.

The issue of payment for the IEE of Dr. Porter is somewhat closer. However, the ALJ finds that it is appropriate to defer to the State of Wisconsin DPI guidance that requires reimbursement "only after the local educational agency completes its evaluation." Accordingly, the District is not liable for the costs of Dr. Porter’s evaluation.

1. The Division of Hearings and Appeals has authority to hear due process hearing requests pursuant to Wis. Stat. § 227.43(lm).

2. The Student identified above is "a child with a disability" needing "specially designed instruction" within the meaning of Wis. Stat. ch. 115.

3. "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child’s parents, to meet the unique needs of a child with disability including instruction in physical education. Wis. Stat. § 115.76(15). The Student has received specially designed instruction adequate to meet his unique needs.

4. "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services; including rehabilitative counseling; orientation and mobility services; medical services for diagnostic and evaluation purposes; and the early identification and assessment of disabling conditions in children. Wis. Stat. § 115.76 (14) Transportation services provided to the Student do not relate to his disability and his suspension from the bus did not have an impact on the Student's ability to receive a "free and appropriate public education."

5. "Free appropriate public education" (FAPE) means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program. Wis. Stat. § 115.76(7).

6. The determination of when FAPE has been met is a two-fold inquiry:

   First, [whether the school district] … has complied with the procedures noted in the Act … and second, [whether] … the educational program developed through the Act’s procedures was reasonably calculated to enable the child to receive educational benefits. Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

7. The District provided individualized instruction reasonably calculated to enable the Student to receive educational benefit.

   The District complied with the procedural requirements of the IDEA in all respects except its failure to provide copies of the Student's "special education and disciplinary records" to the Juneau County Sheriff's Department.

   This failure did not result in any denial of a FAPE to the Student. To support a finding that a student has been provided with a FAPE, procedural violations must be serious and cause the student to lose educational opportunity. Burke County Bd. of Educ. V. Denton, 895 F.2d 973, 982 (4^th Cir. 1990)

8. The adoption of the IEP from the Tuscon, Arizona, school district was expressly permitted by Wisconsin law. PI 11.07(1)(b) provides as follows:

   When an LEA receives a transfer pupil with a disability from a public agency in another state, the LEA may provide special education and related services in accordance with the most recent IEP developed by the sending public agency until the LEA develops its own IEP or adopts the sending public agency's IEP.

   Adoption of the Tuscon IEP on an interim basis was appropriate.

9. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. 300 C.F.R. § 300.502(b)

   Wisconsin DPI has interpreted the Federal rule as follows:

   Parents have the right to obtain public funding for an IEE only after the local educational agency completes its evaluation. The law does not require a local educational agency to reimburse parents for the cost of an evaluation that the parents obtained before the agency completed its evaluation, even if the agency subsequently adopts the results of the evaluation obtained by the parents. DPI Bulletin No. 99.02

   The District’s evaluation was not complete when the parents undertook the IEE.

   Accordingly, there is no requirement that the District paid for the cost of the IEE.

WHEREFORE IT IS HEREBY ORDERED, that due process hearing request LEA-00-0045 be DISMISSED, WITH PREJUDICE. The District is the prevailing party after this hearing on the merits.

Dated at Madison, Wisconsin on February 15, 2001.

APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under Wis. Stat. § 115.80(7), or to federal district court pursuant to U.S.C. § 1415 and 34 C.F.R. § 300.512.