Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Janesville School District

 
Case No.: LEA-02-003

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

The Parties to this proceeding are:

[Student], by Attorney Robert Pledl
Schott, Bublitz & Engel, S.C.
16655 W. Bluemound Road, Suite 330
Brookfield, WI 53005

Janesville School District, by

Attorney Renae Groeschel
Quarles & Brady, LLP
411 East Wisconsin Ave.
Milwaukee, WI 53202-4497
PROCEDURAL BACKGROUND

On January 15, 2002, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the Federal Individuals with Disabilities Education Act (IDEA), from the attorney for [Student] (the "Student") and his parents [Father and Mother] (the "Parents"). A due process hearing was held on June 24, 25, and 26, 2002. At the request of both parties, the hearing was continued on July 18, 2002 to allow the Student to present testimony in rebuttal to some newly discovered evidence introduced by the Janesville School District (the "School District"). At the request of the School District, the hearing was continued to August 15, 2002, to accommodate the schedule of an expert witness. At the request of the Parents, the hearing was closed to the public.

Pursuant to the final order extending the 45-day deadline, the parties submitted post-hearing briefs on September 16, 2002. The decision deadline is October 7, 2002.

The issues presented were as follows:

  1. Whether the School District provided the Student with a Free and Appropriate Public Education (FAPE) during the spring 2001 semester.
  2. Whether the Individualized Education Program (IEP) developed for the 2001/2002 school year was reasonably calculated to provide FAPE to the Student.

As relief, the Student seeks compensatory education for the Spring 2001 semester and tuition and mileage reimbursement for the 2001/2002 school year. The Student also made a procedural request for attorney's fees. At the commencement of the hearing, the undersigned administrative law judge denied the request, as this tribunal has no statutory authority to grant attorney's fees.

FINDINGS OF FACT

  1. During the 2000/2001 academic year, the Student was a fourth grade student at Wilson Elementary School in Janesville, Wisconsin. He was and is a student with a disability as defined by Wis. Stat. §115.76(5). (See Exhibits 1 and 15).

  2. The School District created an individualized education program (IEP) on April 5, 2000 to be utilized from April 10, 2000 to April 10, 2001. (Exhibit 1)

  3. It is undisputed between the parties that the Student's behavior greatly deteriorated during the Spring 2001 semester. On January 15, 2001 the Student kissed a girl on the cheek without permission. (Exhibit 519) On February 5, 2001, the Student retaliated against a child he believed had cut in front of him, by putting the child in a bear hug. (Id.) On February 6, 2001, the Student pushed another student and grabbed her arm without permission. (Id.) On February 13, 2001, the Student left the school without permission. (Id.) On March 2, 2001, the Student refused to finish his sandwich; he refused to follow directions, and he used inappropriate language towards a teacher. (Id.)

  4. On March 9, 2001 the IEP team conducted a meeting, to address the Student's inappropriate behaviors and to create a behavior plan. (Exhibit 39) At the meeting, the team created a Winning Behavior Contract (the Contract). According to the Contract, the Student's behavior would be monitored through out the day and he would earn points for good behavior. If he earned 75% of all possible points at the end of the week, the Student would earn a reward. The Student could also use the points to purchase a reward at the end of the month from a special education auction. If the Student misbehaved, he would be sent to the adjustment room and he would be required to complete a behavior packet. Then, the Student would be required to show his parents the behavior packet and discuss it with them (Id; TrI 773:3-19)

    Footnote: Two court reporters prepared transcripts for this hearing. TrI refers to the transcript prepared by Mindla Rothman. TrII refers to the transcript produced by Carla Miller.

  5. On March 16, 2001, the Student ignored a teacher's directions to stay inside during recess. On March 20, 2001, the Student refused to do math in class and he pushed a teacher. On March 27, 2001, the Student refused to go to class and hid under tables. (Exhibit 519)

  6. The School District responded to the continuing misbehaviors by referring the Student for a re-evaluation on March 30, 2001. (Exhibit 3)

  7. At the end of March, the School District switched the Student's speech and language teacher from Judy Haag to Nanette Rehling. (TrI 726: 17-20; 189:19-21)

  8. Ms. Rehling testified that the student came to her and appeared to be happy. Ms. Rehling stated that the Student was proud of the fact that he remembered the programs on which Mr. Rehling worked with him before. (TrI 190: 22-25; 191: 1-11)

  9. On March 22, 2001, the Student's mother took the Student for an evaluation by Julie Hinzmann, MSW, who diagnosed the Student with Adjustment Disorder with Disturbance of Conduct. (Exhibits 30, 508)

  10. On April 2, 2001, the Student's mother took the Student to Child and Family Psychological Services Clinic to be assessed by Nira Sherz-Busch. The testing was completed on April 20, 2002. (Exhibit 16, Exhibit 509)

  11. On April 3, 2001 the Student refused to get a Tardy slip, and when given one, he dropped it on the floor. Later that day, the Student refused to follow directions to stay after school as punishment for an earlier failure to follow directions. On April 4, 2001, the Student left school without permission. (Exhibit 519)

  12. The Student regularly attended classes until the beginning of spring break, April 9, 2002, completing three quarters of the 2000/2001 school year. (Exhibit 34, TrI. 43:22-25; 44:1-18) The Student's grades for the third quarter were as follows: Health C*, Language C**, Math B**, Reading C**, Science B*, Social Studies C*, Spelling B**. (Asterisks indicate testing accommodations - See Exhibit 34)

  13. On April 21, 2001, Dennis Christoffersen, a psychologist from Child and Family Psychological Services evaluated the Student, but Dr. Christoffersen did not make a diagnosis, instead recommending a referral to a psychiatrist. (Exhibit 514).

  14. On April 27, 2001, the Student's mother took the Student to see Dr. David Israelstam, a psychiatrist, who performed an intake evaluation of the Student. (See Exhibit 501) On this same date, Dr. Israelstam wrote a prescription indicating his opinion that the Student should not return to school. (Exhibit 4)

  15. On May 8, 2001, the IEP team met again to develop a program of homebound instruction for the Student. (Exhibit 5; TrI: 45:23-25; TrI 46:1-10) The Student received such services from May 9, 2001 to June 6, 2001. (Exhibit 5). According to the Student's report card, he received the following grades: Reading C, Language A-, Spelling C, Health Science B, Social Studies A, Reading C. (Exhibit 35)

  16. At the Parents' request, the School District made a referral for a re-evaluation of the Student on June 1, 2001. (Exhibit 8).

  17. On June 8, 2001, the IEP team met to prepare an Extended School Year program for the student that was to be implemented from June 8, 2001 to August 27, 2001. (Exhibit 9).

  18. Ms. Rehling, a learning disabilities teacher at Wilson Elementary, provided educational services to the Student from June 11, 2001 until June 21, 2001. (Exhibit 10) The Student co-operated with four of eight sessions. (Exhibit 10) The Student's education was delayed because the Student went to Ashland to spend the summer with his father on June 25, 2002. (Exhibit 10)

  19. When the Student returned from Ashland in the early fall of 2001, Ms. Rehling resumed the homebound instruction. (TrI 192:23-25; 193:1-11). According to Ms. Rehling's testimony, the Student was happy and contented about the work she was doing with him. The Student was particularly excited about working on a Pokemon based alphabet that Ms. Rehling wanted to use with her other students. (TrI 193:13-25; 194; 195:1-19).

  20. After two to three weeks of this homebound instruction, the Student's mother informed Ms. Rehling that the Student no longer wished to participate and the homebound instruction ceased. (TrI 195:2-7)

  21. An IEP meeting was scheduled for August 24, 2001, to determine the Student's placement and needs. However, the meeting was postponed to August 29, 2001, with the Parents' consent because the School District needed time to gather more detailed information about the Student's behavior. (Exhibit 13, TrI 56:1-19)

  22. On August 27, 2001, the Student started attending Walbridge Academy, a private school, on an hourly basis. The Student attended Walbridge Academy through out the 2001/2002 School year. (Exhibit 543)

  23. By August 29, 2001, the School District had not yet received the report from Ms Sherz-Busch. So, with the Parents' consent the meeting was postponed until September 21, 2002. (Exhibit 13, TrI 56:1-19)

  24. An IEP meeting took place on September 5, 2001 to discuss placement and eligibility criteria. (Exhibit 15, TrI 57:19-25, 58:1)

  25. On October 2, 2001, the IEP team met again, and created an IEP to be utilized for the 2001/2002 school year. (Exhibit 19) This IEP changed the Student's placement from Wilson Elementary School to Jackson Elementary School. The Student's curriculum included assistive technology. (Id. It also included a transition from homebound schooling to full-time curriculum, by allowing the Student to come to school part-time from October 15, 2001 to October 19, 2001. (Id.)

  26. On October 17, 2001, counsel for the Student/Parents sent a letter to the School District's attorney indicating that the Parents have rejected the proposed IEP and are going to enroll the Student at Walbridge Academy. (Exhibit 546)

  27. The Student, his mother, and brother moved to an apartment in the City of Madison sometime between December 2001 and January 2002. (TrI. 482: 18-25; 483: 1-5; 634: 3-25) The Student's family purchased a home in the city of Madison in the spring of 2002. (TrI. 475: 1-25)

DISCUSSION

Wisconsin Statutes Section 115.77(1m)(b) and the Individuals with Disabilities Education Act (IDEA) requires school districts to provide a free and appropriate public education (FAPE) to children with disabilities. (See also CFR Sec. 300.121). Wis.Stats. Sec. 115.76(7) and IDEA define FAPE as, "special education and related services that are provided at public expense and under public supervision and direction…and are provided in conformity with an individualized education program." (See also CFR Sec. 300.13)

I. Did the School District provide FAPE to the Student during the Spring 2001 semester?

The parties dispute whether the Student was able to benefit from either the 2000/2001 IEP or the subsequent IEPs established for the spring semester of that school year. It is undisputed that the Student's behavior deteriorated during the spring semester. However, the Student was able to achieve grades in the realm of B's and C's throughout the three quarters he was actually attending classes in the Wilson Elementary School building for the 2000/2001 school year. (Exhibit 34) The Student's teacher, Andrew Follis, testified that he saw great improvement in the Student's academics and that the Student, "earned the grades on his report card. He really did." (TrI 726: 21-25; 727: 1-10)

On March 9, 2001 the School District amended the IEP to address the Student's behavioral problems and on May 9, 2001 the School District created an IEP for homebound instruction. (Exhibit 5 and 39) The Student's fourth quarter grades ranged from C's to A's. (Exhibit 35).

The Student's writing between January 2001 and March 30, 2001 also shows some modest improvement. The Student continued to have difficulty with spelling, but as the semester progressed the Student wrote more and expressed more ideas such as writing paragraphs about being the last snowflake of winter, or his dad flying a kite with dynamite attached to the tail. (Exhibit 42)

The Parents argue that standardized scoring indicates that the Student did not make progress. In April 2000, the spring semester of the Student's third grade year, the student took a Terra Nova standardized test. He had reading scores of 1.5 Grade Equivalency (GE) and a National Curve Equivalency (NCE) score of 20. His language scores were 2.3 GE and 34 NCE. (Respondent's Exhibit Binder pg. 3)

In May 4, 2000, the Parents took the Student to Slyvan Learning Center (Sylvan) who administered a California Achievement Test. The results of these tests were substantially similar to the test administered by the School District less than one month earlier. On the Sylvan tests, the Student had a vocabulary score of 1.7 GE and 12 NCE, and a Comprehension score of 2.0 and 21 NCE with a total reading score of 1.9 GE and 15 NCE (Exhibit 552)

On February 23, 2001, the School District administered another Terra Nova standardized test. The Student's reading scores were 3.9 GE and 45 NCE, and his language scores were 2.6 GE and 31 NCE. (Exhibit 40) Based upon the Terra Nova scores, there is a clear indication of progress made by the student between April/May 2000 and February 2001.

Ms. Rehling testified that in the third grade, the Student was switched from a "pull-out" language class, where he was taken out of the regular classroom setting, to a co-taught classroom, where the Student would study with regular education students. The School District made this switch, because the Student had reached grade level at the end of second grade using the Lindamood Bell and Orton-Gillingham approaches. The student struggled in third grade. So, for fourth grade, the Student was returned to a "pull-out" language class using the Lindamood Bell and Orton-Gillingham approaches. (TrI 186:12-25; 187: 1-20; 188: 2-7) Because the Lindamood Bell and Orton-Gillingham approaches helped the student successfully reach grade level in second grade, it is not surprising that a re-institution of those teaching methods in a "pull out" situation would result in a higher reading and language score in fourth grade than third grade. Ms. Rehling's testimony is consistent with, and lends credibility to, the Terra Nova/Slyvan scores.

On April 4, 2001, the Parents took the Student to see Nira Sherz-Busch at Child and Family Psychological Services Clinic. Ms. Scherz-Busch administered the Woodcock-Johnson Psycho-Educational Batter - III - Tests of Cognitive Ability and Achievement tests (Woodcock-Johnson). According to these tests the Student had a "broad reading" score of 1.9 GE. Apparently, no NCE was generated for this test. (Exhibit 508)

The Parents argue that the scores from the test administered by Ms. Sherz-Busch conclusively show that the Student did not, in fact, progress. I find it difficult to believe that the test scores produced by the Woodcock-Johnson tests accurately reflect the Student's abilities.

I agree with the Parents that the discrepancies in scoring between the Terra Nova and Woodcock Johnson tests are troubling. Indeed, I am surprised that no one sought out or recommended confirmatory tests, particularly, because the circumstances surrounding the Woodcock-Johnson testing are questionable for the following reasons:

First, the Student had only been acquainted with Ms. Scherz-Busch for less than two weeks before she began administering tests. (Exhibit 509) According to her report, the Student remained aloof with her. (Exhibit 509) Second, Ms. Sherz-Busch stated that the Student's anxiety prevented him from exercising his full potential in some areas of testing. (Exhibit 509) Third, Ms. Sherz-Busch also stated that the Student appeared very frightened and she testified that the Student was also anxious, uncomfortable, tense, fearful, and oppositional. (Exhibit 509, TrI 829:20-25: 830: 1) Fourth, at the time Ms. Scherz-Busch tested the Student he had recently experienced a tremendous change in his life, having been withdrawn from school since April 9, 2001. Finally, if in fact the student was exhibiting symptoms of post-traumatic stress disorder (PTSD) at the time of testing, as is asserted by the Parents, it would not be a great leap in logic to believe that the Student's emotional state would detrimentally affect the Student's achievement on a standardized test. Because no further testing was done to determine whether the scores achieved by the Student on the Woodcock-Johnson tests were an accurate reflection of the Student's abilities or a product of poor circumstances, I cannot find the tests administered by Ms. Scherz-Busch to be reliable and I have disregarded them.

Based upon the Student's grades, the Student's writing samples from January 22, 2001 to March 30, 2001, and based significantly upon the Terra Nova/Sylvan test scores, I find that the IEPs implemented for the 2000/2001 school year provided educational benefit to the Student and that the School District provided FAPE to the Student during the Spring 2001 semester, as required by Wisconsin Statutes Section 115.77(1m)(b) and the IDEA.

II. Was the IEP developed for the 2001/2002 school year reasonably calculated to provide educational benefit to the Student?

The Parent's seek tuition and mileage reimbursement for the 2001/2002 school year. Pursuant to Wis. Stat. Sec. 115.791(1) and CFR Sec. 300.403(c), a hearing officer may require the local educational agency to reimburse the parents for the cost of private school tuition, if the local educational agency did not make FAPE available to the student in a timely manner. There is no assertion by the Parents that the School District failed to create and offer an IEP to the Student in a timely manner. The parties dispute whether the School District could have provided FAPE to the student in a Janesville District School.

It is the Parents' contention that the Student is physically unable to attend any school in the Janesville School District because he is suffering from Post-Traumatic Stress Disorder (PTSD), and is fearful of going to school in the Janesville School District. Therefore the Parents assert that the Student is incapable of deriving any benefit from any IEP that includes placement at a school in the Janesville District. The Parents relied upon the opinion of Dr. Israelstam.

Dr. Israelstam initially diagnosed the student with social phobia and PTSD. (TrI. 332:15-18, Exhibit 11 ) Dr. Israelstam also opined that the student could not attend any school in Janesville. (TrI 340:2-7) However, I can give no credence to Dr. Israelstam's opinions because he relied entirely upon information from the Student's mother to make his diagnosis and prescribe treatment. (TrI 388:17-25, 389:1-14). Dr. Israelstam took no relevant information from the Student, nor did he make any specific observations of the Student. (Id.) The Parents served as Dr. Israelstam's major source of information regarding the Student. (Id.)

Dr. Israelstam testified that it is common practice to rely primarily upon information from parents to make a diagnosis. (TrI 389:21-25, 390:1-3) I do not doubt that parental input is a significant factor in treating children. However, I cannot believe that it is the only source of information that is to be relied upon.

Dr. Israelstam did not obtain any information from the Student regarding his apparent psychological difficulties. If the Student had been incapable of communication or completely refused to communicate, I might be more willing to accept Dr. Israelstam's opinion. However, the Student was a 10 year-old fourth-grader at the time of the diagnosis and even the testing conducted by Ms. Sherz-Busch indicated that the Student's verbal abilities were at a 4.2GE. (Exhibit 508) As such, even with his profound speech and language delays, the Student was capable of expressing his feelings and experiences surrounding school and should have been consulted. Indeed, Dr. David Cipriano, who interviewed the Student on June 20, 2002, testified that he did not have any difficulties obtaining information from the Student in this regard. (TrI.102: 13-17; 105:20-25; 106:12-25: 107-112:1-9) Because Dr. Israelstam did not obtain any information from the Student to make his diagnosis and treatment recommendations, I have disregarded Dr. Israelstam's opinions.

The Parents have also offered the opinion of Karen Grede, a psychotherapist who began treating the Student on October 24, 2001. (Exhibits 549 & 550, TrI 489:5-21) Ms. Grede testified that other than expressing a general hatred of school, the Student was incommunicative with her about school, changing the topic, telling Ms. Grede to "shut-up", or threatening to leave. (TrI 493:17-25: 494-498:1-22) According to Ms. Grede she is still working on getting the Student to trust her. (TrI 498:21-22) However, she asserts that the Student is extremely school phobic. (TrI 499:5-10) Because the Student has been consistently allowed to tell Ms. Grede to "shut-up" and to refuse to talk about the matter, I find it difficult to believe that Ms. Grede has been able to obtain sufficient information to render an opinion about the Student's psychological state. Further, I find the "avoidance" behaviors exhibited by the Student in Ms. Grede's office, i.e. foot-tapping, wanting to leave, etc. to be inconclusive evidence. The Student's conduct could be as easily attributable to a willful child who just doesn't want to talk about a certain topic, as it could be to a child that is afraid of talking about a certain subject matter. As such, I have disregarded Ms. Grede's opinions as well.

The most reliable witness to appear at the hearing was Nanette Rehling, a special education teacher at Wilson Elementary School. According to Ms. Rehling, when she worked with the Student at the end of March 2001, he appeared happy and was proud that he remembered what Ms. Rehling had taught him in previous years. (TrI 190: 22-25; 191: 1-11). In her report regarding the extended school year, Ms. Rehling indicated that she had some difficulty getting the Student to co-operate, but that she was able to work with him at least four times before the family went to Ashland for the summer. (Exhibit 10). Mr. Rehling again worked with the Student in the early fall when he returned from school. Ms. Rehling testified that the Student was engaged and excited about working on a Pokemon alphabet that he could share with other students. (TrI 193:13-25; 194; 195:1-19). On October 13, 2001, Ms. Rehling again saw the Student and spoke to him at Toys "R" Us. (Exhibit 23, TrI 195: 17-25; 196: 1-21) According to Ms. Rehling she had a brief conversation with the Student, and she saw the Student interacting with two other students from Wilson elementary. (TrI 196: 17-25; 197: 1-8)

Dr. David Cipriano interviewed the Student on June 20, 2002, at the Janesville District Offices. (TrI 102: 13-17) According to Dr. Cipriano, the Student told him about going to a festival at Wilson Elementary School and riding his bike to play on the playground at Wilson Elementary School. (TrI 107:9-25; 108:1) Apparently, the Student enjoyed the festival; he particularly enjoyed attempting to dunk his least favorite teacher in a dunk tank. (Id.)

The Student clearly does not like school. He left Wilson Elementary School without permission on two occasions. (Exhibit 519) When his parents mentioned going back to school at the end of the Student's summer with his father, the Student hid under his bed. (TrI 475:13-24; 476: 1-5) On more than one occasion, the Student stated that he would like to see schools blown up (Exhibits 514, 519, 522, and 523). The student further told Dr. Cipriano that he hated all schools, including Jackson Elementary School, the new school in Janesville proposed by the School District, and Walbridge Academy, the private school in which the Parents enrolled the student. (TrI 108:16-17; 110:8-23) However, given that the student responded well to Ms. Rehling, a teacher from Janesville, and given that the Student was able to go to Wilson Elementary School for events he perhaps found more interesting than attending class, I do not believe the student would have been afraid or otherwise incapable of attending school at Wilson Elementary School or in the Janesville School District.

During the early fall of 2001, homebound education was provided by Ms. Rehling, until the Student's mother terminated the program. (TrI 192-23-25; 193:1-11) On October 2, 2002, the IEP team met and created an IEP to be utilized for the 2001/2002 school year. (Exhibit 19) The IEP includes goals and objectives to improve the Student's reading and writing, as well as goals and objectives to address the Student's behavioral issues. (Id.)

This IEP changed the Student's placement from Wilson Elementary School to Jackson Elementary School because the Student refused to go to Wilson Elementary. (Id.) It also included a transition from homebound schooling to a full-time curriculum, by allowing the Student to come to school part-time from October 15, 2001 to October 19, 2001. (Id.) Most significantly, the Student's curriculum included assistive technology. (Id)

Kathy White, the assistive technology specialist for the Janesville School District, appeared at the hearing and testified that she performed an evaluation of the Student in August 2001. (TrI 253:5-16; 256:10-15) According to Ms. White, the Student was very engaged and co-operative with the evaluation. (TrI 257: 15-25) The Student even smiled. (Id.) Ms. White further testified that the Student's writing improved with the use of Kidpics, Kidsperation, and Co-writer software, and a Franklin Speller. As a result, he appeared to enjoy himself and feel better about himself. (TrI 258:5-25; 259; 260; 261:1-13) This is not surprising given the undisputed fact that the Student takes great interest in robots.

Having examined the IEP (Exhibit 19), I find that it was reasonably calculated to provide an educational benefit to the Student. It is undisputed that the Student requires a great deal of assistance in the area of speech and language. The IEP addresses this issue by placing the student in a small group and it includes something the Student was excited about-the assistive technology. It is also undisputed that the Student has behavioral issues that need to be addressed. The IEP also created goals and objectives in that area and allowed for the development of a behavior plan. The IEP also stated that the Student would be taught in a smaller class to, "enhance peer relationships and individual or small group instruction for oral communication training." Consequently, I find that the IEP developed for the 2001/2002 school year was reasonably calculated to provide FAPE to the Student and I find that the Parents are not entitled to tuition reimbursement.

CONCLUSIONS OF LAW

  1. The School District provided FAPE to the student during the Spring 2001 semester.
  2. The IEP developed for the 2001/2002 school year was reasonably calculated to provide FAPE to the Student.
  3. The Parents are not entitled to tuition reimbursement for the 2001/2002 academic year.
  4. This tribunal does not have the statutory authority to award attorney's fees.
  5. The School District is the prevailing party.

ORDER

The Parents' request for attorney's fees, compensatory education, and tuition reimbursement is denied.

Dated at Milwaukee, Wisconsin on October 4, 2002.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
819 North 6th Street, Room 92
Milwaukee, Wisconsin 53203-1685
Telephone: (414) 227-3841
FAX: (414) 227-3818
By:______________________________________
Mayumi M. Ishii
Administrative Law Judge
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.

To facilitate preparation of the record, when an appeal is filed with the court please send a copy of the appeal to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400.