The Parties to this proceeding are:

On September 10, 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 September 21, 2001 and October 5, 2001. At the request of both parties, the date for the issuance of a final decision in this matter was extended to November 9, 2001.

The only issue in this matter is whether or not Granton School District (the District) should be ordered to reimburse the [Family] for private school tuition for [Student] (the Student) because of the Student’s fear and stress about returning to Granton elementary school.

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

1. The Student, date of birth [xxxxxx], is 11 years old. She has attended school in the District since kindergarten. The Student has been identified as a child with a disability since May of 1999.
2. An initial evaluation of the Student in May of 1999 by the school psychologist found the Student to have intellectual ability at least within the low average range, with basic academic skill development within normal limits. The school psychologist also noted some suspicion of mild anxiety, internalizing adjustment problems and attention focusing problems that raised the possibility that the Student might have attention deficit disorder (ADD). An evaluation by the school speech pathologist identified that the Student had some mild articulation and language concerns and she began receiving speech and language special education services after an initial Individualized Education Program (IEP) meeting on May 20, 1999 when the Student was in the third grade (Exhibit #8). The Student’s mother attended this IEP meeting.
3. Another IEP meeting was held at the end of the Student’s fourth grade on May 9, 2000 (Exhibit #7). The IEP continued speech and language special education services of 3 to 4 sessions a week at 15 to 20 minutes a session. The IEP also listed behavioral interventions for the Student’s poor motivation in learning. The interventions were to continue medical monitoring of ADD, verbal and written cues/reminders for organization and accountability and token reinforcement system. The Student’s mother attended this IEP meeting.
4. The Student repeated the fourth grade in the 2000-2001 school year. During this year, she was absent from school because of illness or doctor appointments over 50 times (Exhibit #9). The Parents reported to the school that the Student was having aches and pains and that she was having anxieties related to school.
5. An annual IEP meeting was held on May 29, 2001. The meeting was originally scheduled for May 10, 2001 and was rescheduled to May 22, 2001 (Exhibit #4). The Parents did not attend the meeting on May 22. The Parents alleged that they were locked out of the building for the May 22 meeting, but there was no evidence to substantiate this allegation. The meeting was re-scheduled and held on May 29, 2001 and the Parents attended the meeting.
6. The IEP of May 29, 2001 continued the speech and language special education services at 3 sessions of 20 minutes each per week (Exhibit #5, page 5). The IEP also provided for positive behavioral interventions of having the Student’s teacher check her assignment notebook daily to make sure she had recorded all of her assignments and to have a folder on or near the teacher’s desk where the Student’s incomplete assignments could be placed so that they would not be lost (Exhibit #5, page 2).
7. The May 29, 2001 IEP also noted that the Student’s parents (Parents) were concerned about having the Student in an IEP program and about the Student’s emotional state regarding school (Exhibit #5, page 4).
8. The Parents sent a letter to the District dated July 23, 2001 in which they informed the District that the Student would not be attending the District school (Exhibit #12). The Parents stated that the reason the Student would not be attending school was because it would likely cause extreme stress and harm to the Student and the Parents requested that the District pay for the Student to attend a private school at public expense. The Student has not attended school in the District during the current school year.
9. On August 23, 2001, the Parents requested that the Student be re-evaluated by the District because they were concerned about the Student’s apparent over-anxiousness related to school and her general state of emotional distress (Exhibit #2).
10. On September 10, 2001, the Department of Public Instruction received a request for a due process hearing from the Parents. In the request, the Parents requested that the District pay for the Student to attend a private school. The Parents stated in the request that the Student has had extreme nightmares and stress about returning to school because her sister had been the victim of sexual abuse after being dropped off by a school bus at a local bar and because the Student had been repeatedly misdiagnosed as having head lice. The Parents also stated in the request that the Student had been teased and badgered by the staff and students at the District school and that medical experts had advised them that the Student should attend a private school.
11. The District’s licensed school psychologist performed an evaluation of the Student on August 30, 2001 (Exhibit #3, page 4). The evaluation was performed at an area bank instead of at the school and with the Parents present at the request of the Parents. The school psychologist observed that the Student was cautious and slow in her responses to questions during the evaluation. It was the opinion of the school psychologist that the Student did not show significant emotional disturbance based on the results of the evaluation, but that the information from the Parents about the Student’s fear of school and her many absences from school may have shown enough concerns of anxiety to meet the characteristics of Emotional Behavioral Disturbance (EBD).
12. An IEP meeting was held on September 25, 2001 and continued on September 27, 2001 (Exhibit #3). The Parents attended the meeting on both days. The IEP team determined that the Student met the criteria of a student with EBD. The IEP listed strategies to work with the Student’s fears in returning to school. The strategies included desensitizing her fears by allowing initial short visits to school and then short school days with visits from her parents. Another strategy in the IEP was to provide a "safe place" with a "safe person" that the Student could go to as needed during the school day. The IEP stated that the Parents did not want the Student to be counseled by the school’s guidance counselor or school psychologist and that the issue of counseling was left open for possible future discussion (Exhibit #3, page 8).
13. The IEP continued to provide positive behavioral interventions to help the Student with organization and missing assignments (Exhibit #3, page 9). The IEP also continued to provide speech and language therapy three times a week for 20 minutes each (Exhibit #3, page 13). The IEP also listed goals, benchmarks and short-term objectives in reducing her anxieties about school and in passing her academic classes (Exhibit #3, page 10). The IEP also provided for regular notification to the Parents about the Student’s progress toward her annual goal (Exhibit #3, page 11).
14. The Student had made significant progress in speech during the 2000-2001 school as noted by the September 25 and 27, 2001 IEP (Exhibit #3, page 12) and the credible testimony of the District’s speech pathologist.
15. The District elementary school is an appropriate placement for the Student. I found the testimony of the school speech pathologist, the school psychologist and the CESA-10 special education consultant credible and reliable that going to a different school would increase the Student’s phobia, that she needed to be de-sensitized to attending the District school and that the District was able to work with the Student to help her re-integrate into the school.
16. The Parents did not offer any expert witnesses in this matter. The only witness who testified on behalf of the parents was a neighbor and friend with no education background. She testified that the Student is afraid to go back to school because of what happened to her sister and because the teachers singled her out about her head lice. There was no evidence about the alleged incident with the Student’s sister or about teachers misdiagnosing the Student with head lice.
17. There was also no evidence presented by the Parents regarding an appropriate private school placement for the Student and she is not currently attending a private school at this time.

In this case, the Parents are requesting that the District be required to pay for private school tuition for the Student. Under Federal and State law, a hearing officer may order a local education agency to reimburse the cost of enrollment in a private school to parents of a child with a disability who had been receiving special education services if the local education agency had not made a free appropriate public education available to the child in a timely manner before that enrollment. 20 U.S.C. §1412(a)(10)(C); 34 C.F.R. §300.403(c); and Wis. Stats. §115.791(1).

It is not disputed that the local education agency (Granton School District) has been providing the Student with special education services since the end of her third grade. Therefore, the issue to be determined is whether or not the District made a free and appropriate public education available to the Student in a timely manner.

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.

As to the first part of the two-part test, there is no contention by the Parents that the IEP or IEP process was procedurally inadequate. The Parents participated in the formation of each of the Student’s IEPs and have never challenged the appropriateness of those IEPs.

Second, the District has provided a meaningful educational benefit to the Student in the 2000-2001 school year. The District had been providing speech and language special education services since May of 1999 and the District’s speech and language pathologist found that the Student had made significant gains by the end of the 2000-2001 school year. Also, the IEP provided positive behavioral intervention for the Student. These interventions were found to be necessary based upon the evaluations and teacher observations in order to deal with the her problems of missing assignments and organization.

For the current school year, the IEP of September 25 and 27, 2001 would provide a meaningful educational benefit to the Student if the Student attended the District school. The Student has now been identified by the IEP team as having an emotional behavioral disturbance (EBD) after the referral by the Parents on August 23, 2001. Both the District’s school psychologist and the CESA-10 special education specialist gave credible and reliable expert opinions that the IEP provided the appropriate placement for the Student at the District school because the Student is familiar with the school and the IEP provides a plan for reintegration into the school that would address her fears about attending school.

The Parents have alleged that the Student’s fears about returning to the District school stem from alleged actions by the District. These alleged actions include the District taking the Student’s sister to area bars by school bus without their permission, misdiagnosing the Student with head lice and harassing the Student. The Parents have referred to these allegations in the due process request and in a letter to the District (Exhibit #13). However, they presented no evidence to prove these allegations.

The only evidence presented by the Parents was the testimony of their friend and neighbor who affirmed that the Student was fearful about returning to school. It is not disputed that the Student is fearful about returning to school and that is one of the factors that led to her identification as having EBD. The IEP plan to reintegrate the Student into the school and work on her fears is appropriate for this Student.

The District has argued that the burden of proof in this case should be on the Parents since they are requesting a change in an existing IEP. The IDEA is silent with respect to the burden of proof in special education cases and various jurisdictions have assigned the burden differently. Unfortunately, the Seventh Circuit has not yet addressed the issue of burden of proof at the administrative hearing.

The District has argued that I should follow the reasoning of the U. S. District Court for Maryland in finding that the party challenging an IEP or seeking to have it changed bears the burden of proof when there is already an agreed upon IEP in place. Brian S. v. Vance, 32 IDELR 69 (2000). In that case, the Administrative Law Judge found that the evidence presented on both sides was impressive and, as a result, the "assignment of the burden of proof" was crucial. Id.at page 206.

The assignment of the burden of proof is not crucial in this case. The District has carried the burden that they have provided FAPE to the Student and that tuition reimbursement to the Parents is not required in this case.

1. The Granton School District is the prevailing party.
2. The Granton School District has provided a free and appropriate public education to the Student as required by the Individuals With Disabilities Education Act, 20 U.S.C. §1400, et seq, and Wis. Stat. Ch. 115.
3. The placement of the Student at the Granton Elementary School is an appropriate placement and the request for reimbursement for private school tuition is denied.

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

Dated at Madison, Wisconsin on November 9, 2001.

NOTICE OF APPEAL RIGHTS