Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

On December 13, 2000, the Fond Du Lac School District filed a request for an expedited hearing pursuant to 20 U.S.C. 1415(k)(2) with the Department of Public Instruction. The deadline for issuing a decision in this matter was initially January 27, 2001. On January 10, 2001, the Honorable Aaron E. Goodstein, Eastern District of Wisconsin, issued an order staying the proceedings before the Division of Hearings and Appeals and tolling the deadline for issuing the decision in this matter. After an evidentiary hearing conducted on January 25, 2001, Judge Goodstein issued a Decision and Order Denying the Plaintiff’s Motion for a Preliminary Injunction and Vacating Stay. Judge Goodstein’s order is dated January 30, 2001. The Fond Du Lac School District filed a copy of the order with the Division of Hearings and Appeals and indicated that the deadline for issuing a decision in this matter is now February 23, 2001. A scheduling conference in this matter was conducted on February 5, 2001, and a hearing date was set.

Pursuant to the due notice a hearing was conducted on February 15, 2001, in Fond Du Lac , Wisconsin. Mark J. Kaiser, Administrative Law Judge, presiding. The parties filed simultaneous post-hearing briefs on February 20, 2001.

The Parties to this proceeding are:

1. [Student] (the Student) is a 17-year-old male. He is cognitively disabled and has been diagnosed with Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS), Attention Deficit Hyperactivity Disorder (ADHD), and Oppositional Defiant Disorder (ODD). The combined effect of these disorders is to impair the Student’s ability to interpret social situations, hinder his language communication skills, and make him behave compulsively. When exposed to stressful situations, the Student can become agitated and aggressive. The Student is a "child with a disability" within the meaning of the definition of that phrase found at Wis. Stat. § 115.76(5).

2. The Student resides in the Fond Du Lac School District (the School District) and has been educated in the School District since September 1986. On May 23, 2000, an Individualized education Program (IEP) for the Student covering the 2000-01 school year was developed. The IEP has effective dates of June 1, 2000, through May 31, 2001. Placement of the Student is at Theisen Junior High School (Theisen JHS). During the 1999-2000 School year the Student was also placed at Theisen JHS 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 High School, the School District's only high school.

3. Not satisfied with the IEP, the Student’s parents, [Father & Mother] (Parents) requested a due process hearing pursuant to the Individuals with Disabilities Education Act. The request was filed on July 24, 2000. In their request, the Parents alleged that the Student’s placement at Theisen JHS was not the least restrictive environment and they sought, among other things, placement of the Student at Goodrich High School. The due process hearing request was assigned case number LEA-00-034.

4. The Student continued to be placed at Theisen JHS during the 2000-01 school year pending a decision on the Parents’ due process hearing request. As part of the Student’s IEP, the District contracted with Todd Stevens and Associates (TSA), to provide community-based vocational training. On September 29, 2000, an incident occurred in which the two aides from TSA were injured. After that incident TSA refused to provide aides for the Student until there was further assessment of the Student and additional information on how to work with the Student’s aggressive behaviors. As a result of the incident the School District suspended the Student from school for ten days.

5. On October 3, 2000, the School District filed a request for an expedited due process hearing with the Wisconsin Department of Public Instruction (DPI). The School District’s hearing request was filed pursuant to 20 U.S.C. §1415(k)(2) and sought an order placing the Student in an interim alternative educational setting (IAES). The School District’s hearing request was assigned case number LEA-00-043. On October 17, 2000, the Parents’ filed a motion seeking a stay-put order maintaining the Student’s placement at Theisen JHS during the pendency of a decision in case number LEA-00-034.

6. On October 25, and 26 and November 6, 2000, Administrative Law Judge (ALJ) Brian K. Hayes held a consolidated hearing on case numbers LEA-00-034 and LEA-00-043. On October 26, 2000, ALJ Hayes issued an oral ruling that denied the Parents’ motion for a stay-put order. On October 30, 2000, ALJ Hayes reduced his order to writing. ALJ Hayes ordered that,

   [The Student] be placed in the Winnebago Mental Health Hospital as an Interim Alternative Educational Setting and to receive educational services that include an emotional behavior assessment and other goals and objectives includ[ed] in his Individualized Education Plan that is not to exceed 45 days commencing on October 30, 2000.

7. On December 4, 2000, ALJ Hayes issued a written decision in case numbers LEA-00-034 and LEA-00-043. ALJ Hayes found that the School District has provided FAPE to the Student and that placement at Theisen JHS is the least restrictive environment for the placement of the Student. The decision also noted that the Parents declined to enroll [Student] in the IAES and he has not been educated outside his home since September 29, 2000.

8. The 45-day IAES ordered by ALJ Hayes was never implemented. Since September 29, 2000, the Student has been at home with his Parents. During the four-month period that the Student has been at home, he has, according to Dr. John Korger, his treating psychiatrist, experienced his best four months in terms of behavior that he has had since Dr. Korger began treating him. Dr. Korger saw the Student five times between September 29, 2000, and the date of the hearing in this matter. Dr. Korger’s testified that the Student’s behavior in the last four months has involved only "minor incidents" and no "aggressive incidents." This testimony is primarily based on reports from the Student’s Parents.

   There is no reason to doubt Dr. Korger’s testimony that the past four months have been the Student’s best period behaviorally since he began treating the Student. However, the weight given this opinion is limited because it is based primarily on reports from the Student’s Parents and it occurred during a time period that the Student was at home interacting primarily with family and friends. Dr. Korger also testified that in his opinion if the Student returned to the placement at Theisen JHS without any behavioral modification training he would be likely to behave inappropriately.

9. The School District is now seeking a 45-day IAES for the Student at Waterwood School in Oshkosh, Wisconsin. Waterwood School provides a day treatment facility and educational services for Winnebago Mental Health Institute patients. Waterwood School’s program emphasizes changing the behavior of its students. Dennis Meszaros, the principal of Waterwood School, testified that to the extent possible Waterwood School would work towards the goals in the Student’s IEP, but would integrate behavioral modification into that work. Mr. Meszaros admitted that, at least initially, Waterwood School would not provide the community-based vocational training component of the Student’s IEP.

10. The School District has demonstrated by substantial evidence that maintaining the current placement of the Student is substantially likely to result in injury to the Student or to others.

11. The School District made reasonable efforts to minimize the risk of harm in the Student’s current placement, including the use of supplementary aids and services. Despite the School District’s efforts, Theisen JHS is not an appropriate placement for the Student at this time.

12. Waterwood School is an appropriate IAES for the Student. Placement at the Waterwood School will enable the Student to continue to participate in the general curriculum set forth in his IEP and to continue to receive those services and modifications that will enable him to meet the goals set out in his current IEP.

13. The behavioral modification training proposed to be provided at Waterwood School is designed to address the behaviors that resulted in the Student’s suspension from school and led the School District to request an IAES for the Student.

14. Placement at the Waterwood School is the least restrictive environment available for an IAES for the Student that will lead to the desired behavioral modification for the Student.

The authority for a hearing office to order an IAES is found at 20 U.S.C. § 1415(k)2 and at 34 C.F.R. § 300.521. 20 U.S.C. § 1415(k)2 and 3 provide:

Additionally 34 C.F.R. § 300.521(e) provides that "substantial evidence" as used in this section means "beyond a preponderance of the evidence."

The School District presented substantial evidence at the hearing before ALJ Hayes that the Student displayed aggressively violent behavior in September of 2000. The testimony from the hearing before ALJ Hayes was incorporated into the record in the instant matter and the testimony at the hearing in this matter was limited to any changes in the Student’s behavior since September 29, 2000. The School District was not able to provide any direct evidence at the hearing on February 15, 2001, related to the Student’s behavior from September 29, 2000 to the present. However, it did present the opinion of its expert, Dr. Bradford Lyles, that past violence is the best predictor of future violence. Although not the preferred evidence, this opinion is the best that the School District could provide in light of the Parents’ refusal to allow access to the Student for evaluation purposes to the School District’s expert prior to the hearing. Dr. Lyles’ opinion was based on his review of the testimony and exhibits presented at the hearing before ALJ Hayes and his experience and research involving children with combinations of disabilities similar to those of the Student.

As found above, Dr. Korger testified that the past four-month period has been the best period behaviorally for the Students since Dr. Korger began treating him. However, the weight given this testimony is limited by the fact that Dr. Korger’s testimony is based on seeing the Student with his Parents only five times and the fact that the Student has been at home with his Parents during the entire four-month period. More telling is Dr. Korger’s opinion that the Student would again behave inappropriately if he returned to Theisen JHS without any behavioral modification program. Absent evidence by the Parents that any type of behavior modification training has been provided to the Student since September 29, 2000, the School District has presented substantial evidence that the Student remains likely to repeat past aggressive violent behavior and is a threat to the safety of himself and others.

Prior to September 29, 2000, the School District contracted with TSA for the provision of two aides for the Student in addition to his special education teacher. The School District made reasonable efforts to minimize the risk of harm to the Student during his placement at Theisen JHS in September of 2000. Despite these efforts, the Student’s uncontrolled behavior resulted in his suspension from school. An IAES is warranted for the Student. In his post-hearing brief, the Student concedes this conclusion. The issue to be decided in this case is whether Waterwood School is an appropriate IAES.

Pursuant to 34 C.F.R. § 300.522(b), an IAES must:

1. Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in the IEP; and
2. Include services and modifications to address the behavior described in §§ 300.522(a)(2) or 300.521, that are designed to prevent the behavior from reoccurring.

The Parents also do not dispute the placement at Waterwood School will include services and modifications for the Student which are designed to address the behavior which initially resulted in his suspension from the School District. They dispute whether placement at Waterwood School satisfies the requirements of 34 C.F.R. 300.522(b)(1). On this issue, the Parents argue Waterwood School is not an appropriate placement for two reasons. The reasons are that Waterwood School is not the least restrictive environment available and that it will not enable the Student to provide all the components required in his IEP.

Least restrictive environment is a continuum with mainstreaming of a disabled student at his neighborhood school at one end of the continuum and placement in a residential institution at the other end of the continuum. The day program at Waterwood School is near the institutionalized residential placement end of the continuum. Placement at Waterwood School would require the Student to travel approximately thirty minutes to and from school each day, he would be restricted to the school grounds during the time he was in attendance, and he would be educated with only disabled students. Although this is a restrictive environment, the School District presented substantial evidence that the program provided at Waterwood School is necessary for the Student to be receive the behavioral modification training necessary for him to return to a school within the School District. No such program currently exists in Fond Du Lac.

Although it is theoretically possible to develop a program identical to that of the Waterwood School in Fond Du Lac , it is unreasonable to require the School District to do so for one student for a 45-day period when an appropriate school exists nearby. One of the Parents’ concerns is the Student’s inability to travel thirty minutes in an automobile. Based on the evidence in the record, this is a legitimate concern; however, the School District is clearly ready, willing, and able to provide whatever resources are necessary to ensure that the Student is safely transported from Fond Du Lac to the Waterwood School.

The Student’s current IEP contains a component requiring community-based vocational training. Mr. Meszaros testified at the hearing that Waterwood School would be unable to provide this component of the Student’s IEP. Although the community-based vocational training component of the Student’s IEP will not be provided while he is placed at Waterwood School, there is no requirement that all portions of the IEP be provided at all times during the school year. The purpose of providing the behavioral modification training at Waterwood School is clearly intended to enhance the School District’s ability to provide community based vocational training to the Student when he returns to a school within the School District. Although the Student will not receive community-based vocational training while at the Waterwood School, placement at the Waterwood School is intended to assist him in meeting the goals set out in his IEP. The Waterwood School is an appropriate IAES for the Student.

In conclusion, after a consolidated hearing conducted in response to the due process hearing request filed by the Student’s Parents and an expedited hearing request filed by the School District, ALJ Brian Hayes found that the School District has provided FAPE to the Student and that an IAES was appropriate. No specific IAES was established and the 45-day period for that placement elapsed without any educational services being provided to the Student. On December 13, 2000, the School District filed another request for an expedited hearing seeking an order for an IAES for the Student. In this request, the IAES proposed by the School District is Waterwood School in Oshkosh. Although ALJ Hayes’ decision has been appealed by the Parents, the evidence upon which he based his finding that an IAES was appropriate for the Student is not seriously disputed. There is no evidence that any steps have been taken to modify the behavior of the Student that resulted in his suspension from school during September of 2000 and led to the School District requesting the initial expedited hearing before the Division of Hearings and Appeals. Accordingly, it is found that an IAES is still appropriate for the Student. It is further found that Waterwood School is an appropriate IAES for the Student.

The Parents and the School District went through a multi-day hearing before the Division of Hearings and Appeals during the fall of 2000. The parties subsequently had an evidentiary hearing before a federal judge magistrate on the Parents’ motion seeking an order to enjoin the instant hearing. At the conclusion of each hearing, a decision was issued. The respective fact finders found, among other things, that an IAES is appropriate for the Student. No evidence was presented during the hearing in the instant matter to contradict this finding. Furthermore, there is testimony from the School District’s expert and corroborated by the Parents’ own expert that the educational program at Waterwood School would be beneficial to the Student. One of the Parents’ primary objections to placement at the Waterwood School appears to be the amount of travel required to transport the Student from Fond Du Lac to the Waterwood School in Oshkosh. Based on the evidence presented at the hearing, transporting the Student to the Waterwood School may present an initial problem; however, it is not an insurmountable obstacle.

The Parents other concern with placement at the Waterwood School is that the community-based vocational training component of the Student’s IEP will not be provided while he is a student at that school. As discussed above, although this component of his IEP can not be accommodated at the Waterwood School, the behavioral modification training he receives will ultimately assist him in meeting all the goals of his IEP, including the community-based training component. Overall, the educational benefits that the Student will receive from his placement at the Waterwood School out weigh any immediate loss from not receiving community-based vocational training while he is enrolled there. Unless there is another significant concern that the Parents were unable to articulate during the hearing in this matter, it is difficult to comprehend their resistance to an IAES at Waterwood School. Based on the evidence in the record, a short-term placement of the Student at the Waterwood School will provide long term benefits to the Student’s educational attainment.

1. The School District has demonstrated by substantial evidence that maintaining the current placement of the Student is substantially likely to result in injury to the Student or to others. The School District also demonstrated that it made reasonable efforts to minimize the risk of harm in the Student’s current placement, including the use of supplementary aids and services and that despite these efforts, the Student’s current placement, Theisen Junior High School, is not an appropriate placement for the Student at this time.

2. Waterwood School is an appropriate interim alternative educational setting for the Student. Placement at Waterwood School will enable the Student to continue to participate in the general curriculum and to continue to receive those services and modifications that will enable him to meet the goals set out in his current IEP.

3. The behavioral modification training proposed to be provided at Waterwood School is designed to address the behavior that resulted in the Student’s suspension from school and led the School District to request an alternative interim educational setting for the Student.

4. Placement at Waterwood School is the least restrictive environment that will lead to the desired behavioral modification for the Student at this time.

5. The School District is the prevailing party in this matter.

The placement of [Student] is changed from Theisen Junior High School to the Waterwood School in Oshkosh, Wisconsin effective February 26, 2001, as an interim alternative educational setting pursuant to 20 U.S.C. § 1415(k)(2). This alternative interim educational setting shall be for a period of no more than 45 days.

Dated at Madison, Wisconsin on February 23, 2001.

NOTICE OF APPEAL RIGHTS

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 §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512.