Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On December 28, 2000, the Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats. from the Madison Metropolitan School District (District) regarding [Student1], [Student2], & [Student3].

The District alleged that the parent, [Father], has requested that the school district cease all special education services to his children. It alleged that [Father] refused to consent to re-evaluation testing procedures and that [Mother] did consent to reevaluation testing procedures. The District alleged that it is unable to conduct a reevaluation without the consent issue being resolved and it requested an order overriding the parent’s refusal to consent to a reevaluation pursuant to Wis. Stats. §115.80(1)(b).

A pre-hearing conference was held by telephone on January 5, 2001. The hearing in this matter was held on January 23, 2001.

1. [Student1] (d.o.b. xxxxxx), [Student2] (d.o.b. xxxxx) and [Student3] (d.o.b. xxxxx) are the children of [Father] and [Mother].
2. All three children attend Orchard Ridge Elementary School in the District.
3. All three children have previously been identified as children with a disability within the meaning of state and federal law. During the 2000-2001 school year, all three children have received special education services pursuant to separate individualized education programs (IEPs) under IDEA and Wisconsin Statutes, Subchapter V, Chapter 115, Stats. (Exhibits 3, 5 and 6 are the current IEPs for the three children)
4. Approximately 2 to 3 weeks after school started in the 2000-2001 school year, [Father] requested that his three children be removed from special education.
5. According to the school principal, Michael Herrting, he discussed the issue with [Father] on two occasions prior to October 31, 2000.
6. According to Principal Herrting, one of the issues raised by [Father] was that the District was relying on data that was too old for the children’s IEPs and that the District should be using more current data.
7. Three IEP meetings were scheduled on October 31, 2000, one for each child (Exhibits 2, 4 and 7 are the notices for the IEP meetings).
8. The three IEP meeting notices included observations of the children by their teachers, prior educational evaluation results and the current services being provided to the children (Exhibits 2, 4 and 7).
9. The notices also included recommended reevaluations for each child. Recommendations for [Student1] academic and language reevaluations (Exhibit 2). Recommendations for [Student2] included reading, writing, math, language and adaptive skills reevaluations (Exhibit 4). Recommendations for [Student3] included intellectual functioning, adaptive skills and motor skills reevaluations (Exhibit 7).
10. [Mother] attended all three IEP meetings on October 31, 2000. [Father] had to leave during the first IEP meeting for [Student1] because of a work obligation. [Father] returned for the third IEP meeting for [Student3]. [Father] was not present during any of [Student2]’s IEP meeting.
11. Prior to [Father]’s return to the meetings, [Mother] signed consent to reevaluations for [Student1] and [Student2] (last pages of Exhibits 4 and 7).
12. After [Father] returned to the meetings, he and [Mother] refused to consent to a reevaluation for [Student1]. [Father] also believed that the District had confused his wife into getting her consent.
13. At the conclusion of the meetings, both Mr. and Mrs. XXXXX verbally agreed that they did not consent to reevaluations for any of the three children.
14. [Father] believes that his three children no longer need special education. He believes that special education services have failed for his children because they are still functioning at two years below grade level. He believes that the District has failed his children and he intends to place them in private schools at some point in the future.

Even though [Mother] initially signed consents to two of the reevaluations, I do not find that she consented. At the end of the third IEP meeting on October 31, 2000, both parents clearly told the District that they did not want the reevaluations. I am satisfied that the written consent by [Mother] was verbally rescinded at the end of the IEP meetings on October 31, 2000.

The issue, therefore, is whether the parents’ refusal to consent can be overridden as authorized by Wis. Stats. §115.80(1)(b). That statute allows the District to file a written request for a hearing to override a parent’s refusal to grant consent for a reevaluation.

The District is required by federal and state law to make sure that any child with special education needs is given the special education services that they need. Pursuant to 20 U.S.C. §1400 (d)(1)(A) and 34 C.F.R. §300.1(a), it is the purpose of the Individuals with Disabilities Education Act (IDEA) to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs.

Also according to IDEA, all children who are in need of special education and related services must be identified, located and evaluated. 20 U.S.C. §1412(a)(3)(A) and 34 C.F.R. §300.125(a)(1)(i). In other words, if there is a question as to whether a child is in need of special education services, the District is required to evaluate that child to determine what services, if any are needed for that child.

In this case, the XXXXX children have already been identified, located and evaluated as children in need of special education and related services. They were receiving these services when [Father] requested that all special education services be stopped for his children because he felt they were not helping his children.

Because these were children already identified as children with special education needs, the District could not merely stop all services based upon the request of [Father]. The District has an obligation to provide free appropriate public education to the children. Instead, the District requested reevaluations to determine the present needs of the children. The Parents provided no justifiable basis for withholding their consent to the reevaluations.

Reevaluations will determine the educational needs of the children and what services, if any, are needed for each child. Without the reevaluations, the District would not be able to insure a free appropriate public education to the children as required by the Individuals with Disabilities Education Act (20 U.S.C. §1400 (d)(1)(A)).

The Madison School District has demonstrated by a preponderance of the evidence that it is required by the Individuals with Disabilities Education Act’s requirement to provide free appropriate public education that the parents’ refusal to consent to the reevaluations of [Student1], [Student2], & [Student3] by the District is overridden.

NOW, THEREFORE, IT IS HEREBY ORDERED that the parents’ refusal to consent to the reevaluations of [Student1], [Student2], & [Student3] is overridden and that the Madison School District shall conduct a reevaluation of [Student1], [Student2], & [Student3] to determine whether they continue to be children with disabilities as defined in the Individuals with Disabilities Education Act and in Chapter 115 of the Wisconsin Statutes.

Dated at Madison, Wisconsin on February 20, 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 §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512.