Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

The Parties to this proceeding are:

On May 4, 2001, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Ch. 115 (1997-98) and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq. Pre-hearing conferences were held on May 17, 2001 and May 23, 2001. The hearing was conducted on June 21 and 22, 2001. At the request of both parties, the date for the issuance of a final decision was extended to July 20, 2001.

There are two issues in this case:

Based upon the entire record and arguments in this case, this is the final decision and order of the undersigned Administrative Law Judge.

1. [Student] (Student), date of birth xxxxxxx, is 21 years old and graduated from the Wisconsin Dells School District (District) on May 25, 2001. His legal guardian is his grandmother, [grandmother] (Grandmother). He has attended school in the District since he was eleven years old. He has been identified as a child with a disability and has been in the District’s special education programs since he was enrolled in the District.
2. The Student has severe cognitive disabilities and speech and language disabilities. At the time the Student was enrolled in the District, his developmental abilities were in the 3 to 6 year old range. When he was assessed in October of 2000, his developmental functioning level was at an 8-year-old range.
3. Transition services for the Student were initially identified in his IEP for the 1995-96 school year (Resp. Ex. 3). Those services included learning every day life skills, being involved in Special Olympics, after school tutoring class, summer camp, church activities and basic work and getting along skills. Similar services were identified in the 1996-1997 IEP (Resp. Ex. 5).
4. For the 1998-1999 IEP, in addition to the services previously identified, a referral was made to the Juneau County Human Services and a representative was invited to the IEP meeting. The representative did not attend the IEP meeting but the Student was placed on a waiting list for County services (Resp. Ex. 15).
5. For the 1999-2000 IEP, a referral was made to the American Indians With Disabilities Vocational Rehabilitation Program (AIWDVR) for an evaluation (Resp. Ex. 16). He was evaluated at University of Wisconsin-Stout Assistive Technology and Assessment Center on December 3, 2000 (Resp. Ex. 46). The evaluation recommended job shadowing and further career exploration, a driver’s assessment and work experience with supports. The District determined that the Student would not be able to obtain a driver’s license.
6. From 1992 through 2000, the Student had various unpaid janitorial job training and experience through the District that included washing tables and helping the kitchen staff at the middle and high school kitchens, janitorial training at the Ramada Inn and McDonalds, towel folding at the high school for the physical education classes, janitorial work associated with a school festival, kitchen and janitorial work at the Tribal Aging Unit. In the summer of 2000, the Student worked for pay doing housekeeping work at the Ho-Chunk Lodge by an arrangement with the Ho-Chunk Labor Department in housekeeping. From 1999-2001, the District also gave the Student job experience of helping with some mass mailings for the Future Alliance organization and helping to assemble discount coupon packets for the Sherwood Forest Campground. (Resp. Ex. 57)
7. From 1999 through 2001, the District also provided simulated workshop activities for the Student. These activities were jobs that he would likely perform in a sheltered workshop and were simulated in the school by the use of work boxes. These activities included sorting, taking objects apart, putting objects together, counting, matching, shredding and collating (Resp. Ex. 62 at 361-396). This type of work was difficult for the Student because he is very slow and meticulous and he would become bored with the work. Also, sheltered workshops pay on a "piece rate" method and since he worked very slowly, the Student would not be able to make much of an income. Finally, a sheltered workshop would be the most restrictive work environment that would not be in the community.
8. An IEP meeting was held on October 18, 2000 for the 2000-2001 school year (Resp. Ex. 21). The Grandmother did not attend the IEP meeting because of a funeral, but she requested that the meeting take place without her attendance. The representative from the AIWDVR had also been invited to the meeting and did not attend the meeting. The IEP team reviewed the evaluation performed by University of Wisconsin-Stout and the evaluations performed by the Student’s special education teachers. The team reviewed the Student’s present level of performance for job and daily living skills. The IEP statement of transition services was that the Student would "continue to work on daily living skills while being placed in the community on a job site and will begin making final transition contacts with community agencies". The summary of transition services referred to the short-term objectives and follows up with the AIWDVR representative to transition the Student into the community. The short term objectives in the IEP were:
1. By the end of the IEP, [the Student] will complete hygiene tasks with no reminders.

2. By the end of the IEP, [the Student] will use a communication system to help him perform basic job skills on a job site.

3. By the end of the IEP, [the Student] will prepare 15-20 food items.

4. By the end of the IEP, [the Student] will recite his phone no. clearly.

5. By the end of the IEP, [the Student] will carry personal I.D. with him to school.

9. From December of 2000 until May of 2001, the Student was placed at a job cleaning rooms at the Treasure Island Hotel for pay with a job coach. This type of work is called "supported employment". The student was paid minimum wage. The Student eventually was able to clean a room with minimal assistance and was found to be a willing worker.
10. In January of 2001, the Student was given a new counselor at the AIWDVR. The new counselor and Grandmother met with the District on January 31, 2001 and recommended that the Student should be placed in the Vernon Area Rehabilitation Center (VARC) sheltered workshop for industrial job experience. Grandmother was not happy with the Student’s job at Treasure Island Hotel. It is not clear why she did not want him to work at the hotel, she testified that he could do that kind of work at home. She had also told the IEP team that she wanted the Student to have a "real job."
11. An IEP meeting took place on March 8, 2001 to consider changing the Student’s placement to VARC for industrial job training experience. The Student attended the meeting and stated that he wanted to continue working at the Treasure Island Hotel. The IEP team determined that the Student should not be placed at VARC because it was a more restrictive environment and he was already having success in a less restrictive environment at the hotel (Resp. Ex. 26). The IEP team determined that the Student was a very social person who enjoyed being around people at the hotel. The IEP team also determined that the Student would graduate at the end of the school year. The Grandmother and the Student’s counselor from AIWDVR disagreed with the IEP team’s determination.
12. Steven Johnson, an independent living specialist at Great River’s Independent Living Services in La Crosse, Wisconsin attended the March 8 IEP meeting at the request of the Student’s counselor from AIWDVR as an advocate for the Student. Mr. Johnson asked the Student where he preferred to work and the Student answered that he wanted to work at the hotel. Mr. Johnson disagreed with the Student being placed at VARC because it was the most restrictive placement and the Student had already been successfully placed at a non-restricted job setting in the community.
13. Another IEP meeting took place on April 9, 2001. The IEP team again decided that the Student’s employment at the Treasure Island Hotel with a job coach more adequately met his needs than placement at VARC (Resp. Ex. 27-29). The Grandmother and the counselor from AIWDVR disagreed with the IEP team’s determination.
14. Corinne Quadland, a special education consultant and parent advocate for the Parent Education Project of Wisconsin attended the April 9 IEP meeting at the request of the counselor from AIWDR. She reviewed the October 18, 2000 IEP and determined that it did not provide an adequate statement of transition services that the District would provide to the Student. It was her opinion that the goals in the IEP were too vague and that this IEP would be difficult to assess or follow. It was also her opinion that placing the Student at VARC would give him additional work experience that was necessary because he had only been given housekeeping experience. However, she agreed that the work boxes that the District had the Student perform would simulate the type of work done in a sheltered workshop.
15. The Grandmother unilaterally placed the Student at VARC on April 30, 2001 and he continued to attend VARC following his graduation from the District.
16. Another IEP meeting took place on May 2, 2001 after the Student had begun attending VARC. The IEP team continued to reject placement at VARC and determined that the employment at Treasure Island Hotel better met his needs (Resp. Ex. 31-33). The Grandmother disagreed with the IEP team’s determination and filed a request for a due process hearing with the Department of Public Instruction on this same date.
17. Richard Lombard, a professor of special education at the University of Wisconsin-Whitewater (Resp. Ex. 54), testified that he had reviewed the Student’s IEPs from October 18, 2000 (Resp. Ex. 21) and it was his opinion that it was appropriate. It was also his opinion that the goals were identified in the areas found to be weak by functional vocational evaluations done by the teachers’ evaluations and the evaluation done by University of Wisconsin-Stout. It was also his opinion that the IEP appropriately identified the necessary living skills the Student would need beyond high school. Finally, it was his opinion that the Student had been exposed to a variety of jobs and work related experiences since 1992.
18. The District completed a final skills assessment of the Student on May 22. The review of his job skills showed that he continued to have difficulty with communication because he is difficult to understand, he often waits to be told what to do next without asking for help and needed reminders to complete his work, but that he had shown great improvement (Resp. Ex. 74 and 77). The assessment showed that he was able to perform his work at the hotel with little to no assistance. His job skills were evaluated by a supervisor at the Treasure Island Hotel who rated his overall performance as very good (Resp. Ex 73).
19. The Student received a graduation diploma on May 25, 2001.

MOOTNESS

IDEA requires that every child receive a free appropriate public education (FAPE) until the age of 21. See 20 U.S.C. §1412(a)(1)(A). In Wisconsin, this is defined as the duration of a school term for any person who becomes 21 years old during a school term and who has not graduated from high school. Wis. Stat. §115.76(3). The Student turned 21 years old on March 18, 2001, and therefore was entitled to a FAPE until the end of the school term and his graduation on May 25, 2001.

The District has argued that since the Student was already 21 years old when the request for a due process hearing was filed with the Department of Public Instruction, this case is non-justiciable on the grounds of mootness. The District has argued that the Seventh Circuit Court of Appeals has addressed this issue because they decided that the "stay-put" provision of IDEA does not apply to children over the age of 21.

The "stay-put" provision of IDEA provides that during any proceeding to enforce IDEA, the "child shall remain in the then current educational placement of such child" unless that parents agree otherwise. 20 U.S.C. §1415(e)(3)(A). In the case of Bd. Of Educ. Of Oak Park & River Forest High Sch. Dist. 200 v. Ill. State Bd. Of Education, 79 F.3d 654 (1996), the court found that the stay-put provision ceases to operate after a child reaches the age of 21. The District argues that this case went on to say that an award of adult compensatory education was an exception to IDEA that also does not apply after a child reaches the age of 21 years because the entitlement to compensatory education is affected by virtue of the "stay-put" provision.

I disagree with the District’s reading of Oak Park. The court clearly stated that compensatory education is a benefit that can extend beyond the age of 21. Id at 659-660. The stay-put provision cannot extend beyond the age of 21 because it would enable parents to obtain adult benefits to which they may have no right by simply filing a claim for compensatory education when their child turns 21. In the case of Oak Park, the child received compensatory education in excess of the parents’ request because the stay-put order kept the child in the school for the entire proceeding to enforce IDEA. Id at 660. A claim for compensatory education would only award a child the relief that they should have received but did not receive because of a school’s failure to provide FAPE.

It is common sense that a claim for compensatory education should go forward in this case. If the District failed to provide FAPE to the Student prior to his graduation on May 25, 2001, the District should be required to provide compensatory education to correct that failure. Therefore, this issue is not moot and it must be determined if compensatory education is the appropriate relief in this case.

COMPENSATORY EDUCATION

IDEA requires that every child receive a free appropriate public education (FAPE). See 20 U.S.C. § 1400(d)(1)(A). A FAPE is specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction. Board of Educ.of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 188-89 (1982). "By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Id. At 192.

Rowley provides a two-part test for FAPE: (1) whether there has been compliance with IDEA's procedural requirements; and (2) whether the IEP is reasonably calculated to provide educational benefits. See Rowley, 458 U.S. at 206-07. If the answer to both questions is yes, no IDEA violation will be found: "[I]f these requirements are met . . . the courts can require no more." Id. at 206-07.

In this case, the Student is alleging that the District failed to provide FAPE by failing to provide adequate transition services to the Student as required by IDEA. Beginning at age 16, the IDEA requires that a student's IEP include a statement of the child's needed transition services, including a statement of interagency responsibilities. See 20 U.S.C. § 1414(d)(1)(A)(i)(II). "Transition services" are defined as a coordinated set of activities for a student with a disability that (A) is designed within an outcome oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based upon the individual student’s needs, taking into account the student’s preferences and interests; and (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluations. See 20 U.S.C. § 1401(30).

The District did follow the procedures of IDEA when they listed the transition services to be provided to the Student in the October 2000 IEP. The transition services included instruction, related services, community experiences and development of employment plan. The IEP could have been more detailed, but it was adequate for the District to provide the required transition services to the Student.

The District made the appropriate contacts with agencies in the community. The District contacted Juneau County Human Services and placed the Student on a waiting list for services and was in continual contact with a representative of AIWDVR for employment and community resources. Since he would not be able to travel or live independently, these are the agencies that would have to be relied on for these services after the Student completed high school

The Student was evaluated by the District and was independently evaluated by the University of Wisconsin-Stout. The District used those evaluations to determine the type of jobs that the Student could do. They exposed him to jobs in the school setting and in the community. Most of these jobs were in the housekeeping area of work. They also exposed him to the type of work that he would perform in a sheltered workshop or some other type of industrial setting when he performed the simulated "work boxes." The Student would not do well at this type of work and did not like it. The District placed him in a "supported employment" at the Treasure Island Hotel where he worked at cleaning rooms with a job coach. He enjoyed this type of work and made progress at his performance. Also, this work was a less restrictive setting than a sheltered workshop would be and the Student was able to be in the community where he enjoyed being around other people.

The complainant argues that this was not a varied exposure to job experiences. It not only appears to be an exposure to a variety of job experiences, but it shows that the District was able to place the Student in a paid employment in a least restrictive environment that the Student enjoyed prior to his 21^st birthday. There may have been other job experiences that the District could have offered to the Student, but the District was not required to provide every possible job experience. They were required to provide job experiences that were based on his individual needs, taking into account his preferences and interests (34 C.F.R. §300.29(a)(2)) and that is what they did.

Finally, the Student did receive an educational benefit and was successful in making progress with his IEP goals. It is true that the Student did not meet all of his educational goals before he graduated on May 25, 2001. He continued to have difficulty with communication and memory because of his disabilities. However, the issue is whether the Student’s IEPs were reasonably calculated to provide education benefits and whether he received educational benefits. He was able to perform a job in the community successfully and he transitioned successfully into the community with his employment at the VARC sheltered workshop.

1. The Wisconsin Dells School District is the prevailing party.
2. The Student’s claim for compensatory education should not be dismissed as moot because the request for a due process hearing was filed after the Student turned 21 years old.
3. The Student was not denied a free and appropriate public education under the Individuals with Disabilities Education Act, 20 U.S.C. §1400, et seq, and Wis. Stat. Ch. 115.

IT IS HEREBY ORDERED, that the due process hearing request be dismissed with prejudice.

Dated at Madison, Wisconsin on July 20, 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.