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State Of Wisconsin DIVISION OF HEARINGS AND APPEALS
ORDER OF DISMISSAL On July 11, 2001, the Fond du Lac School District (School District) filed a request with the Department of Public Instruction for a an expedited hearing seeking an interim alternative educational setting (IAES) for [Student] (the Student) pursuant to 20 U.S.C. 1415(k)(2). In response to the request, a hearing was scheduled to be conducted in Fond du Lac, Wisconsin, on August 23, 2001. At the outset of the hearing, the Student moved to dismiss the School District’s request for a hearing. For the reasons set forth below, the motion was granted and the School District’s request for a hearing is dismissed. The Parties to this proceeding are: Wisconsin Coalition for Advocacy 16 N. Carroll St., Ste. 400 Madison, WI 53703 Fond du Lac School District, by Davis & Kuelthau, S.C. P. O. Box 1534 Green Bay, WI 54305-1534
Attorney Greg Ladewski
Background An Individualized Education Program (IEP) was in place for the Student for the 2000-2001 school year. The age-appropriate placement for the Student would have been at Goodrich Senior High School; however, because there was no room suitable for educating the Student and no CD licensed teacher at Goodrich Senior High School, he was placed at Theisen Junior High School. On September 29, 2000, an incident occurred which resulted in the School District suspending the Student from school for ten days. On October 3, 2000, the School District filed a request for an expedited due-process hearing seeking an order placing the Student in an IAES. After a hearing, a 45-day IAES was ordered; however, the Student never enrolled in the IAES. After this 45-day IAES order for the Student expired, the School District filed a second request for an expedited hearing on December 13, 2000. This request was assigned Docket No. LEA-00-061. In this request the School District sought an order placing the Student at the Waterwood School in Oshkosh as an IAES. After a hearing, an order was issued on February 23, 2001, changing the Student’s placement to Waterwood School as a 45-day IAES. The Student never enrolled at Waterwood School and the 45-day IAES again expired. On April 10, 2001, the School District filed a third request for an expedited hearing seeking an order for an IAES for the Student. This case was assigned no. LEA-01-021. The School District again requested that the Student’s placement be changed to the Waterwood School. After a hearing, an order was issued on May 25, 2001, again establishing Waterwood School as a 45-day IAES for the Student. The Student never enrolled at Waterwood School and the order issued in case No. LEA-01-021 expired on July 10, 2001. On July 11, 2001, the School District filed a fourth request for an expedited hearing seeking an order placing the Student at Waterwood School as an IAES. Discussion The Student’s IEP for the 2000-2001 school year expired on May 30, 2001. At the request of the School District and with the consent of the Student, the order in Case No. LEA-01-021 provided that the deadline for completing a new IEP for the Student was extended to June 1, 2001. The School District did convene an IEP meeting on June 1, 2001. The basis for the Student’s motion seeking dismissal of the School District’s request for an expedited hearing is that no current IEP or placement is in place for the Student. Accordingly, there is no basis to seek an alternative placement for the IEP. Additionally, since no IEP is in place, it is impossible to determine whether the IEP could be implemented at the proposed alternative placement. Issue: Whether a local educational agency (school district) can request an IAES for a student after that student’s current IEP and placement have expired? No evidence was presented in support of the motion to dismiss; however, it is undisputed that an IEP meeting occurred since the date the order in Case No. LEA-01-021 was issued. Wis. Stat. § 115.787(4) requires that the Individualized Education Program Team shall, among other things, "review the child’s individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved" and "revise individualized education program as appropriate . . .." The Student contends that the IEP team that was convened for the IEP meeting did not include all the required participants and that a revised IEP was not completed. For the purpose of this ruling, it will be assumed that a proper IEP team was convened and that, although apparently no document that the parties agree constitutes a revised IEP exists in completed form, the IEP team determined that no substantial revisions to the 2000-2001 IEP were necessary. Although one can assume that the IEP team determined that no revisions to the IEP were necessary for the 2001-2002 school year, the School District clearly was aware, since at least December, 2000, that in its opinion Waterwood School was the appropriate placement for the Student to receive the behavioral modification and shaping that it believes is necessary before he can receive any educational benefit. Accordingly, the School District should have offered Waterwood School as the initial placement at which the educational services in the Student’s 2001-2002 IEP would be provided. This was not done. Rather after the 45-day IAES order in Case No. LEA-01-021 expired, the School District simply filed a request for another IAES. This is a misuse of the expedited hearing request process set forth at 20 U.S.C. 1415(k)(2). 20 U.S.C. 1415(k)(2), provides: A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer— (A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others; (B) considers the appropriateness of the child’s current placement; (C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and (D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B). (3) Determination of setting (A) In general The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team. (B) Additional requirements Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall— (i) be selected so as to enable the child to continue to participate 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 that IEP; and
The expedited procedure for requesting a 45-day IAES is an extraordinary procedure which is intended to be used primarily after a triggering incident which requires that a Student’s current placement be changed. Although comments to the federal regulations indicate that a 45-day IAES can be renewed, there is nothing in the IDEA or the rules promulgated pursuant to the IDEA which would suggest that it can be used as a substitute for the annual process of the School District making a placement offer as part of the annual IEP review. 34 CFR § 300.552 provides: In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that— (a) The placement decision—
(b) The child’s placement—
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled; (d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and (e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. Assuming that after reviewing the Student’s IEP, the IEP team determined that Waterwood School is the appropriate placement to implement the necessary behavioral modification program for the Student, the IEP team should have made a formal placement offer of Waterwood School to the Student. If the Student’s parents refused the placement offer, they could have requested a due process hearing alleging that the proposed placement constituted a denial of a free appropriate public education for the Student by the School District. This procedure is the intended procedure as opposed to serial requests for an expedited hearing seeking 45-day IAESs. It should be further noted that the Student has not received any educational services from the School District since September 29, 2000, and there has not been any complete assessment of the Student’s current condition and/or educational needs. The School District has also opened a new senior high school that may or may not now be an appropriate placement for the Student. At some point, it is incumbent that a full review of the appropriate placement for the Student be considered, not just whether the previously ordered 45-day IAES is still appropriate. The logical time to do so is during the annual IEP review process prior to the commencement of a new school year. Under the circumstances of this case, The School District should not be allowed to request another IAES for the Student after his IEP and placement for the 2000-2001 school year expired. RULING For the reasons set forth above, the School District’s request for an expedited hearing seeking an order for a 45-day interim alternative educational setting for the Student is dismissed. Dated at Madison, Wisconsin on August 27, 2001. DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705 Telephone: (608) 266-7709 FAX: (608) 267-2744 By:_________________________________________ MARK J. KAISER ADMINISTRATIVE LAW JUDGE NOTICE OF APPEAL RIGHTS |