Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

1. Ms. [Student] (the "Student") was born on xx-xx-xxxx. Having reached the age of eighteen in xx-xxxx, rights under the special education laws devolved to her at that time. Due to her profound disability, however, she is not competent to manage her own affairs, so her mother, Ms. [Parent/Guardian], has been duly appointed her guardian ("Parent/Guardian").

2. The Student has received special education services from the Cedarburg School District ("District") since age three.

3. The Student was born with lissencephalopathy, a congenital condition that affects normal brain development. Lissencephalopathy is a chronic and degenerative condition. It generally results in profound developmental delays, poor control of movement, problems with feeding, frequent seizures and repeated episodes of pneumonia. All of these conditions afflict the Student.

4. The Student's adaptive functioning is at approximately a four-month age equivalency. (Ex. 27). Her cognitive development is between the one and four month level of functioning. (Ex. 28). She responds to others by turning her head toward their voices and vocalizing back to them. She is dependent on others for all wheelchair mobility, positioning, and transfers. She has limited sitting balance but is able to maintain head balance while sitting in a wheelchair. (Ex. 27). She cannot roll to a prone or to a supine position without assistance. She has limited strength and range of motion and is totally dependent for support. She also has limited vitality and alertness. To guard against aspiration, she does not take food by mouth but instead is fed exclusively through a feeding tube. She is in essence developmentally infantile in most respects except for her physical growth, which is itself substantially affected by neuromuscular and orthopedic delays, and cortical vision loss. The complications of the lissencephalopathy have required multiple surgeries, the most recent occurring in December 2001.

5. The Student began to attend Cedarburg High School in September 1998. The grade designations and school years are as follows:

   9th grade	1998-1999 school year
   10th grade	1999-2000 school year
   11th grade	2000-2001 school year
   12th grade	2001-2002 school year

6. The measurable annual goals set forth in the Student's IEP's for all these school years reflect her profound disability and centered on maintenance and improvement of motor skills and upper extremity range of motion. (Exhs. 44, 40, 37, 28, 22). To the extent that the IEP's can be regarded to include any academic component, they would be commensurate with the Student's developmental level. The annual goals in the IEP's during grades nine through twelve were relatively unchanged from year to year. (Id.; Tr. 525).

7. At the IEP team meeting on February 5, 2001, the team began taking active steps toward linking with outside agencies with a view to the Student's ultimate post-school transition destination. The IEP team identified a post high school day program called "Pace" to be provided by a company named Balance, Inc. Balance, Inc. is a community-based program for adults with disabilities in Port Washington. The Parent/Guardian considered Balance to be potentially the eventual post-high school transition goal. The District contemplated that a transition to Balance could be complete by January 2002, and that the District would graduate the Student at that time. The District's intent, however, was not clearly articulated or communicated to the Parent/Guardian either orally or in writing. The Parent/Guardian did not reasonably understand that the District's plan was to complete a transition from school to Balance and thus terminate the provision of special education and related services by January 2002.

8. During the summer of 2001, the Student participated in a summer program at Balance, Inc., as part of the District's transition services. However, neither the provision of these services, nor any protocol describing the services or their objectives, were developed or incorporated into the Student's IEP. The District later awarded the Student credit units toward graduation based on her participation at Balance in the summer of 2001.

9. On August 14, 2001, a staffing meeting was held in which the Parent/Guardian participated. The staff and Parent/Guardian agreed that upon commencement of the school year 2001-2002, as part of transition services the Student would participate in day programming at Balance, Inc. three days per week. This programming at Balance beginning in the school year 2001-2002 was not formally incorporated into the IEP, however.

10. By letter from the District dated September 17, 2001, the District informed the Parent/Guardian that the District planned to award the Student a diploma in January 2002, noting that her transition from [City] High School to Balance, Inc. would be complete. This was the first communication to the Parent/Guardian from which she could reasonably understand that the District's intent was to graduate the Student and terminate the provision of special education services before the Student reached the age of twenty-one. (Tr. 496-497, 532).

11. The District's graduation policy requires the completion of 22 credit units, including a total of 13.25 credit units in the following core subjects: English, Social Studies, Mathematics, Science, Physical Education, and Health. The graduation policy also allows for accommodations respecting requirements for receipt of a regular education diploma to students with special education needs. (Ex. 2).

12. The District's regular educational program is designed to be completed in four years, but a student may graduate early upon meeting certain requirements, including holding a student/parent conference with a guidance counselor before May 1 of the year preceding graduation. (Ex. 507). The Parent/Guardian never requested early graduation on behalf of the Student, and no early graduation conference was held either before or after May 1, 2001.

13. The District awarded the Student academic credit toward the award of a regular high school diploma beginning in the 9th grade year and continuing for all subsequent years. As of the beginning of the Student's 12th grade year (2001-2002) she had accrued 22.5 credits in the following courses: Beginning Foods, Basic Academics, Life Skills, Leisure Skills, Vocational Education, Speech and Language, Adaptive Physical Education, Art, Choir, and Ceramics. She received passing grades in all her courses, ranging from "A" to "C' and also "S" for some subjects. Having received passing grades, the District awarded her credit units toward graduation for all the courses. By the beginning of the first semester of her 12th grade year, the Student had accrued more than the 22 credit units required for graduation, a full year earlier than most of her fellow 12th graders.

14. The District did not employ the IEP process to determine any alternative graduation criteria for the Student. The IEP teams from 1998 through 2002 did not discuss or establish whether or to what extent the Student would be awarded credits toward graduation. None of the IEP's from 1998 through 2002 contained any grading or credit unit modifications.

15. The Student's high school special education teacher awarded most of her grades and credits, except for some credits that were assigned by a guidance counselor. This was accomplished wholly outside the IEP development process. The Parent/Guardian and IEP team did not participate in determining the extent to which implementation of the IEP's would result in awarding credit hours toward graduation.

16. None of the IEP's through January 16, 2002 expressly contemplated the Student's graduation or termination of special education services before the Student's eligibility for special education services terminated by reason of reaching the maximum age.

17. The Parent/Guardian immediately voiced her objection to the District's stated intent (set forth in its letter dated September 17, 2001) to graduate the Student in January 2002. From that time forward, the Parent/Guardian and the District remained at odds regarding the appropriateness of graduating the Student in January 2002.

18. The next IEP meeting subsequent to the District's letter of September 17, 2001 was held on November 15, 2001. There the Parent/Guardian renewed her concerns and general objection to graduating the Student in January 2002. The District proceeded apace with a view to graduating the Student at that time, based upon the expected readiness of Balance, Inc. to begin providing a post-graduation day-program for the Student. No IEP was generated as a result of this meeting. The IEP that had been developed on February 5, 2001, remained the effective IEP.

19. The District successfully provided transition services to transition the Student from high school to Balance, Inc., though no formal transition plan describing the components of these transition services was developed or incorporated into the IEP. The combined efforts of staff from the District and from Balance equipped Balance to assume complete responsibility for providing suitable programming and services to the Student by January 16, 2002.

20. An IEP team meeting was held on January 16, 2002. The IEP team determined that a number of goals in the Student's IEP had not been met. The IEP team determined also, however, that Balance was then prepared to begin providing a post-graduation day-program for the Student and that the Student had "earned" the right to a regular education diploma. The IEP team determined that the District should graduate the Student and thus end the provision of special education services. The Parent/Guardian and an advocate for the Student expressed their disagreement with this determination.

21. On January 18, 2002, the District issued a Notice of Graduation, which provided in part that "the IEP team concluded that [the Student] has met the requirement for graduation as well as achieved a successful transition to Balance, Inc." (Ex. 6). On January 18, 2002, the District delivered a regular education diploma to the Student dated June 9, 2002, which is the scheduled graduation day for the remainder of the class of 2002.

22. The District has provided effective transition services to the Student. The IEP's, however, did not identify any protocol for transition to Balance, nor did the IEP's identify a date for graduation and thus the effective date of the actual transition from high school to Balance. The District's letter of September 17, 2001 remained the only written statement of this intent. None of the IEP's, however, linked the readiness of a third party to provide a post-graduation day-program to the Student's eligibility for a regular education diploma.

23. The Student's eligibility for graduation was based on criteria formulated and applied outside the IEP development process. Her resulting graduation was inappropriate as a result. The graduation denies the Student the free appropriate public education ("FAPE") to which she remains eligible.

24. The Student is the prevailing party in this matter.

1. The District violated the IDEA and state law by not employing the IEP process to develop alternative graduation criteria. 34 C.F.R. § 300.347(a)(3)(iii); Wis. Stat. § 115.787(2)(c).

2. The District violated the IDEA by failing to provide written notice of anticipated graduation a reasonable time before the anticipated graduation. 34 C.F.R. § 300.122(a)(3)(iii).

3. These violations resulted in the District inappropriately issuing a regular education diploma to the Student on January 18, 2002.

4. The District denied the Student a free appropriate public education under the IDEA and Wis. Stat. Chapter 115, subchapter V by graduating her and ending her entitlement to special education and related services.

5. The Student continues to be eligible for services under the federal Individuals with Disabilities Education Act (IDEA) and under Wis. Stat. Chapter 115, subchapter V.

6. The Student is the prevailing party in this matter.