Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Madison Metropolitan School District

 
Case No.: LEA-02-004

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

On January 17, 2002, the State of Wisconsin Department of Public Instruction (DPI) received a request for a due process hearing, pursuant to Wis. Stat. Chapter 115 and the Individuals With Disabilities Act. Pursuant to due notice hearing was held at Madison, Wisconsin on February 12, 2002, Jeffrey D. Boldt, administrative law judge (the ALJ) presiding. The parties requested an opportunity to submit written briefs, the last of which was received on February 19, 2002.

The Parties to this proceeding are:

[Student] (the Student), by [Mother]
[Address]

and

[xxxxxx]
[Business]
[Address]

Madison Metropolitan School District (the District), by

Attorney Frank Crisafi
Madison Metropolitan School District
545 West Dayton Street
Madison, Wisconsin 53703-1995

ISSUE FOR HEARING

The parties stipulated that the sole issue for hearing was as follows:

Whether the Encore Studio for the Performing Arts is an appropriate "transitional service" for the student and whether it is a necessary placement to provide the Student with a FAPE.

FINDINGS OF FACT

  1. The student, [Student], was born on [XXXXXXXX]. (Tr. p. 13) The student lives with his mother at [Address] in the City of Madison and attends LaFollette High School as a post-graduate student.

  2. The parties agree that the Student is a "child with a disability" in need of special educational services. The Student has been identified by the District as having a "cognitive disability." (Tr. p. 12)

  3. The Student has been diagnosed as having William's Syndrome, which has led to significant developmental delays. (Tr. p. 59) The Student has many of the traits associated with William's Syndrome, including a very friendly, out-going personality, nervousness, and an aptitude for music. (Tr. pp. 59-60)

  4. The Student graduated with his class during the 1999-2000, school year. (Tr. p. 13) The Student is currently a post-graduate and attends both regular and special education classes at LaFollette High School.

  5. The Student had an Individualized Education Program (IEP) developed after a meeting on August 29, 2001. (Ex. 1) The Student's case manager and special education teacher, Susan Anderson, noticed some incorrect service dates and produced an updated IEP on January 31, 2002, after an oral invitation to a meeting to the Student's mother. (Ex. 2; Tr. pp. 28-29) No changes were made in any of the goals and objectives of the IEP in the updated version. (Tr. p. 30)

  6. The IEP for the Student has goals, designed with measurable benchmarks, within four significant areas. Two relate to daily living skills, and one each related to vocational/career awareness and adaptive and social behaviors. (Ex. 1-2, Section D)

  7. There is no dispute that the IEP meets the Student's needs as it relates to either the daily living skills or adaptive and social behavior goals and objectives.

  8. With respect to vocational and career awareness, the IEP goals involve the Student maintaining paid employment during the year, increasing his independence by improvement in independence in following routines, staying on task and completing tasks. (Tr. p. 19)

  9. The IEP also sets forth plans for a transition to the post-school environment that involves the vocational training area. Specifically, the IEP requires that he receive training on the job, develop independent living skills, work on money management, and prepare for supervised independent housing. (Tr. p. 2; Ex. 2)

  10. The Student has been involved in school-sponsored vocational experiences since the 8th grade. (Tr. p. 40) Since September 15, 1997, the Student has worked at the Concourse Hotel, sorting laundry. The Student works 5 to 6 hours per week, and is accompanied by a Special Education Assistant (SEA). (Tr. p. 41)

  11. The Student has made significant progress at his job. Louis Miller, Vocational Coordinator for Special Education at LaFollette, testified that evaluations of the Student's work performance have gone from fifty percent of other competitive workers to eighty percent. (Tr. p. 42)

  12. While the Student does not read music, he has been a member of various LaFollette band programs for at least two and a half years. (Tr. p. 50) He is currently involved in the concert band and wind ensemble as a percussionist. (Tr. pp. 50-51) He is a valuable member of each group. There is an over-supply of drummers, which limits the playing opportunities of all. (Id.)

  13. The Student and his mother have expressed a strong interest in The Encore Studio for the Performing Arts (the Encore Program), as a vocational placement. (Tr. p. 60) At an IEP meeting held on August 29, 2001, the Student's mother asked that the Student be placed in the Encore Program and that the District provide funding. By letter dated September 12, 2001, the District High School Coordinator, Robert Hoekenga, denied the request for placement and funding in the Encore Program. (Ex. 3) The District reasoned that participation in the program was not necessary to provide the Student with a FAPE. (Id.) Further, that there were other fine arts related services available within the District that would meet the Student's needs. (Ex. 4)

  14. The Encore Program was established in September, 2000, according to Paulette Milewski, the program's managing director. (Tr. p. 80) The Student auditioned and was accepted into the program, in part based upon his abilities in music. The Encore Program aims to offer a professional path to the performing arts for people with disabilities. Participating performers work on stage presence, relaxation and breathing, improvisation, stage movement, choreography, play writing and song composition. (Ex. 7) All Encore actors are self-employed, and the program functions as a supported employment program. (Ex. 5; Tr. p. 72) The program acts as a vocational training program in that participants must commit to rehearsing and developing their skills at least five half days (11:00 a.m. to 3:00 p.m.) or three full days (9:00 a.m. to 3:30 p.m.) per week. (Tr. p. 72) Actors earn from $50.00 to $250.00 per performance; last year participants had gross annual earnings of $425.00 to $1,362.50. (Tr. p. 74)

  15. The Encore Program has never had any participants who have been placed in connection with transitional services for a special education student approaching graduation. (Tr. p. 75) At least one student was placed in the program by Dane County Adult Human Services, after graduation and completion of transitional services from the school district. (Tr. p. 76)

  16. The Encore Program does not provide transportation, except to out-of-area performances. (Tr. p. 78)

  17. The cost to the District of a placement at Encore would be $1,069.75 per month. (Tr. p. 80)

  18. The District has provided the Student with appropriate transitional services. The Student's IEP is reasonably calculated to enable the Student to make progress on the goals and short-term objectives identified therein, and he has made progress and received educational benefit from the existing IEP.

  19. Placement in the Encore program is not necessary to provide the Student with a FAPE.

DISCUSSION

The term "transition services" essentially means services to be provided while the child is of school age to prepare for life as an adult--"a coordinated set of activities…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." 20 U.S.C. § 1401(30)(a) In providing transition services, a local educational agency must provide services that are "…based upon the individual student's needs, taking into account the Student's preferences and interests." 20 U.S.C. § 1401(30)(b)

There is no question that the Student has a strong interest in music and that this interest extends to acting and multi-dimensional performances of the type that Encore produces. However, a transitional service plan is not the same thing as an adult vocational placement. The Encore Program is more appropriate as final supported-employment placement than it is for a transition plan from high school to adult life. This is reflected in its participants to date, which have included adult placements but not students receiving transitional services.

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et. seq. provides that a disabled student is entitled to receive special education and related services so as to provide the student with a FAPE. The requirement that a FAPE be provided is met if a school district offers an education that is capable of "conferring some educational benefit upon the disabled child." Board of Education of Hendrik Hudson Central School District v. Rowley, 458 U.S. 176 (1982). A school district must provide a "basic floor of opportunity" through services that are "individually designed to provide educational benefit" to the disabled child. Rowley, 458 U.S. 176, 201. An IEP must "be reasonably calculated to enable the child to receive educational benefit." Rowley, 458 U.S. 176, at 206-207. Further, the IDEA does not give one a right to a specific placement. What is required is personalized instruction with sufficient support to permit the child to benefit educationally from that instruction. Urban by Urban v. Jefferson County S.D. R-1, 89 F.3d 720 (10th Cir. 1996)

The record was clear that [Student] is making progress and enhancing his skill levels in Daily Living, Vocational Career Goals and Adaptive and Social Skills. (Tr. pp. 24, 42, 49-50) Both the IEP and the implementation of the IEP clearly indicate a plan of services designed to promote movement from school to post-school activities. The IEP addresses the educational, vocational and adult services/independent living environments in a way that has conferred a benefit on the Student. The testimony at the hearing indicated he has made and continues to make progress and benefit from the IEP. (Anderson, Miller, Cyra) LaFollette Band Director Mark Cyra testified that with respect to [Student]'s interest in music, the Student has achieved a "consistent playing, consistent performance" which is "comparable to a typical high school upper classman." (Tr. pp. 50-51) The Student is "a very talented player," well accepted by the other students. (Tr. pp. 51-51) Mr. Miller noted significant progress in evaluations of the Student in his employment at the Concourse Hotel. There is no question that [Student] has "benefited educationally" from his existing IEP. He has made progress in all areas, including vocational and transition related goals.

The Student has a lot going for him. He has made great efforts on his own behalf, and has received tremendous support from his mother. It is hoped that the next IEP will make other District-based fine arts services available to the Student that will allow his continued progress as a performer. It may well be possible for the Student to join the Encore Program, with even better skills, after completion of his education with the District.

CONCLUSIONS OF LAW

  1. The Division of Hearings and Appeals has authority to hear due process hearing requests forwarded by the State of Wisconsin Department of Public Instruction pursuant to Wis. Stat. § 227.43(1m).

  2. The Student is a child with a "cognitive disability" in need of "special education and related services" within the meaning of Wis. Stat. § 115.76(5)(a)(1).

  3. The existing IEP provides a coordinated "set of activities," which are "designed with an outcome-oriented process which promotes movement from school to post-school activities" and are "based upon the individual Student's needs, taking into account the Student's preferences and interests" which include "instructions, related services, community experiences" including "acquisition of daily living status and functional vocational evaluation", all within the meaning of 20 U.S.C. 1401(30). The existing IEP provides appropriate "transitional services" within the meaning of 20 U.S.C. 1401(30).

  4. The existing placement and IEP are sufficient to provide the Student with a "Free Appropriate Public Education" within the meaning of Wis. Stat. § 115.76(7). The existing placement and IEP have been reasonably calculated and implemented to confer "educational benefits" to the Student.

ORDER

WHEREFORE IT IS HEREBY ORDERED that this matter be dismissed.

Dated at Madison, Wisconsin on February 25, 2002.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
5005 University Avenue, Suite 201
Madison, Wisconsin 53705-5400
Telephone: (608) 266-7709
FAX: (608) 264-9885
By:_____________________________________
Jeffrey D. Boldt
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 Wis. Stat. § 115.80(7) 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.