Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On June 13, 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 [Father], father (Parent(s)) of [Student] (the Student). A due process hearing was held on September 9, 2002 through September 12, 2002. At the request of both parties, the date for issuance of the decision in this matter was extended to October 21, 2002.

1. Whether or not the Student should have been identified by the Fall River School District (the "District") as a child with a disability under the Individuals with Disability Education Act?
   a. What effect the statute of limitations has on this determination.

2. Whether or not the District violated IDEA by failing to have a necessary participant at the May 30, 2002 Individual Education Program (IEP) eligibility meeting?

3. If the District was incorrect and should have identified the Student as a child with a disability under the Individuals with Disabilities Education Act, whether or not the district denied the Student a free and appropriate public education (FAPE) by failing to develop an appropriate Individual Education Program?

1. Compensatory education in the form of social skills training, peer relationship training, anger management training, participation in extra-curricular activities and transition services

2. Reimbursement for tuition and travel expenses for placement at a private residential program: Obsidian Trails School

1. The Student is an 18 year old student (date of birth: XXXXX) who is enrolled in the District and has attended school at the District since the second grade. The Student has never been identified by the District as a child with a disability under IDEA.

2. The Student has had disciplinary incidents in his school record since his third grade. These incidents include stealing money from other students in the 3rd grade, fighting on the school bus in the 5th grade, dishonesty and damage to school property in the 6th grade. The incidents increased in the 7th grade with sexually inappropriate graffiti, disruptions in class and damage to school property. Also, the Student's teachers reported that they were concerned about the Student going anywhere in the school building without supervision. In the 8th grade, the reported incidents included a sexually inappropriate letter to a female classmate, aggressive behaviors toward a teachers and inappropriate behavior in classrooms.

3. In February of 1999, in the Student's 8th grade, a behavior management system was put into place by the school. The principal referred to this as an "educational plan." This system involved the Student taking a sheet to every class for each teacher to report on the Student conduct that day and sign each report. The reports were taken to the principal at the end of each day and discussed in order to talk about the positives that day and talk about things that needed improvement (Exhibit 238). The principal made copies of the reports and gave them to the Student to share with his Parents. Although the Parents reported that they did not receive many of these reports, this behavior management system was a positive system that worked fairly well while it was in place.

4. In the 9th grade, there was no "educational plan" or behavior management system at the beginning of the school year. The District wanted to start out the Student with a "clean slate". Unfortunately, there were incidents in late 1999 that included the Student stealing a 12-pack of soda from a classroom, pulling a fire alarm as a prank and stealing fellow student's jackets and a purse. Restrictions on the Student were put back in place (Exhibits 239-240). These restrictions included not allowing the Student in the school building before 7:55 a.m. and after 3:30 p.m., requiring the Student to eat his lunch in the school office, requiring the Student to be escorted by a staff member to each class, not allowing the Student to have access to his locker and not allowing the Student to participate in any extra curricular activities (Exhibit 241). Even with the restrictions in place at school, there were reported incidents of disrespect to teachers, dishonesty, writing derogatory notes to other students and printing a pornographic picture from the internet (Exhibits 245-249).

5. Also as a result of the fire alarm incident, the Student received a disorderly conduct citation and began seeing a probation officer when he was placed on a 6 month consent decree by the juvenile court in December of 1999 (Tr. Vol. 3, p. 3).

6. The Parents have been taking the Student to see a therapist outside of the school setting for several years. The District had several contacts with the Student's therapist during the Student's 9th and 10th grades. At no time did the counselor ever recommend to the District that the Student be identified as a child with a disability needing special education services.

7. The Student continued to have behavioral incidents in the 10th grade. He was allowed to participate in football and basketball, but had suspensions from these activities for disrespect toward a coach on one occasion and unsportsmanlike behavior on anther occasion. He was also suspended from school for an inappropriate note to a fellow student, making prank telephone calls and stealing from the pool locker room (Exhibit 256). In February of 2001, the restrictions on the Student's movements in the school building were put back into place (Exhibit 255).

8. On March 1, 2001, the Student stole a fire extinguisher from a school bus and threw it through a teacher's window in the middle of the night. This incident resulted in a criminal prosecution by the county. The school principal, district administrator and many of the school's staff sent letters to the District Attorney's office recommending serious consequences for the Student's actions and noting concern for the safety of other students and teachers at the District (Exhibits 259, 260 and 261).

9. The Student was admitted to Rogers Memorial Hospital on March 14, 2002 and stayed until March 21, 2002. The treating doctor diagnosed the Student with attention deficit hyperactivity disorder and impulse control disorder and recommended continued psychiatric services and therapy, additional family counseling, medication management and recommended a determination of the need for an alternative placement outside of the school (Exhibit 278). The hospital administered a Wide Range Achievement Test and found the Student to be at a post-high school level (Exhibit 279). The educational therapist at the hospital found that the student was bored and frustrated with the school's curriculum. She advised that due to the Student's high I.Q., he needed academic stimulation beyond a high school curriculum (Exhibit 279).

10. When the Student was discharged from the hospital, he did not return to the regular classroom in the District. The District considered expelling the Student, but the decision was made to not expel the Student (Tr. Vol. 2, pg. 62). He was suspended as a result of the March 1, 2001 incident and returned to the District with a one on one tutor for four hours a week that began after his discharge from Rogers Memorial hospital on March 28, 2001.

11. The Student's therapist recommended a new therapist that specialized in violent behavior. The Student began therapy sessions with this new therapist on March 27, 2001. This therapist met with the Student for 3 or 4 sessions before determining that he needed a more intensive program (Tr. Vol. 4, pp. 170-173). This therapist recommended to the Parents that the Student attend Obsidian Trails School in Oregon. This is an outdoor school program lasting 60 to 90 days for children with behavioral difficulties (Exhibit 254). This program was not recommended for educational purposes, but for the Student's behavioral and emotional needs. This therapist had no background or expertise in educational placements for children with disabilities.

12. On May 11, 2002, the Student entered into a plea agreement for the March 1, 2001 incident with the fire extinguisher. Immediately thereafter, the Parents unilaterally took the Student out of the District and placed him at Obsidian Trails that began on May 12, 2001. The Parents did not request that the District reimburse for placement at Obsidian until after they filed the request for a due process hearing on June 13, 2002. The Student completed the program on August 12, 2001. While at Obsidian, the Student completed 2.5 high school credits that were accepted as transfer credits toward the Student's graduation requirements.

13. Prior to the Student attending Obsidian, the Parents requested that the Student be evaluated for special education services and a referral was made on March 6, 2001. The IEP meeting to determine eligibility for special education services was held on May 29, 2001. The School psychologist reviewed an MMPI-A performed on the Student and written reports from the Student's psychologist and Rogers Memorial Hospital. Her evaluation determined that the Student's behavior was occurring over a long period of time, was persistent and was serious in nature. However, she ultimately concluded that the Student's behavior did not negatively impact his educational performance because he was successfully progressing academically (Tr. Vol. 2, pp. 40-41). The IEP team agreed with this evaluation and the Student was found to be not eligible for special education services and notice of the determination was sent to the Parents with notice of their procedural rights (Exhibit #18).

14. Even though the Student was not found eligible for special education services, the IEP team did recommend an alternative placement for the Student. The IEP team recommended placement at the Madison Area Technical College (MATC) in the Youth Options program in order to provide the Student with a more challenging academic curriculum than would be offered at the District. There is some dispute as to the actual discussion at the IEP meeting, but it is not disputed that there was some discussion that the Student's chances of being accepted into the Youth Options program would be better if he was not identified as a special education student (Tr. Vol. 2, pp. 75-76). Placing a student in the Youth Options program at MATC was not unusual for the District. This District has regularly placed other academically gifted students in a more advanced placement if they were not adequately challenged in the District's regular academic program (Tr. Vol. 2, p. 82).

15. The Student was accepted into the MATC Youth Options program even though he did not become 16 years old (the minimum age for the program) until September 23, 2001. The District paid the tuition (but not travel expense) and the Student attended MATC for the 2001-2002 school year. He earned credit for classes during this year and performed satisfactorily academically.

16. The Student has always performed adequately academically. He is a bright student that performed well in the District when he was challenged and enjoyed his classes. There were various times from 8th grade through 10th grade when a small number of the Student's grades appeared to be negatively affected by his behavior, but he still passed all of his classes. His grades improved from 8th grade through the 11th grade. At the end of the 11th grade or the 2001-2002 school year, he had a cumulative grade point average of 2.77 (Exhibit 24). He is still attending MATC at the present time and will have enough credits to graduate from high school at the end of the first semester of his senior year in December of 2002 (Tr. Vol. 1, pp. 200-201).

17. The Parents reported that the Student began exhibiting behavioral problems at home in December of 2001. The Parents again unilaterally placed the Student at Obsidian on January 18, 2002 and he remained in the program until March 10, 2002.

18. The Parents requested that the Student be re-evaluated for identification as a child with a disability in need of special education serviced on March 26, 2002 (Exhibit 1). Although the Parents disagreed with the District's previous evaluations of the Student, they did not request an independent educational evaluation (IEE).

19. During the 2001-2002 school year, the Student never attended classes in the District. The District received regular reports from the coordinator of the Youth Options program at MATC. The coordinator reported to the District that the Student was doing well, both academically and behaviorally.

20. In preparing for the IEP meeting, the school psychologist reviewed the previous IEP evaluations, the Student's psychologist's report and the reports from Rogers Memorial Hospital and reports from Obsidian. She also talked with the coordinator of the Youth Options program at MATC who said that the Student had exhibited no problems academically or behaviorally during the school year (Tr. Vol. 1, p. 13). She also interviewed the Student and the Parents. She also performed a Behavior Assessment System (BASC) test, but did not involve any of the Student's teachers from MATC. She did not observe the Student in any social setting and had only information from the Parents that the Student had no friends. Her evaluation determined that the Student was not impaired with emotional behavioral disability (EBD) because he had no behavioral problems in the school setting at MATC and was progressing well academically.

21. No regular education teacher from MATC attended the IEP meeting. However, the District principal reported information about the Student's progress at MATC from his regular reports from the coordinator of the Youth Options Program at MATC. Also, the school psychologist had received information about the Student's progress at MATC from the Student and the Parents. There is no evidence that the IEP team would have reached a different result if a regular education teacher from MATC had been present at the IEP meeting.

22. The IEP team determined that the Student was not a child with a disability. Specifically, they found that he did not have an emotional behavioral disability (EBD). They did not consider if the Student would qualify as a child with a disability as other health impaired (OHI). The Parents disagreed with the decision of the IEP team and filed a written request for a due process hearing on June 13, 2002.

23. The Student's placement at MATC is appropriate for the Student. His therapists (Tr. Vol. 3, p. 28 and Vol. 4, pp. 183-184), teachers at Obsidian (Tr. Vol. 3, p. 59), therapist from Rogers Memorial hospital (Tr. Vol. 4, pp. 225-226) and the Student's educational consultant (Tr. Vol. 4, p. 154) all agreed that this placement is the best academic setting for the Student. These treatment providers have all recommended related services such as social skills training and anger management, but none of these recommendations were to help the Student succeed academically.

24. The Student would benefit from social skills training, peer relationship training, anger management training, participation in extra-curricular activities and transition services. However, these are related services and not necessary for the Student's successful educational performance.

1. Should the Student have been identified as a child with a disability under IDEA?

The statute of limitations for filing a due process hearing request is found in Wis. Stat. §115.80(1)(a)1.

The Parents argue that the student qualifies for and is entitled to receive a free and appropriate public education ("FAPE") with special education and related services under the provisions of state and federal laws because the Student is a child with a disability under IDEA and is in need of special education services. According to Wis. Stat. §115.76(5)(a) and 34 C.F.R. 300.7(a)(1) a "child with a disability" is defined as a child who needs special education and related services for reasons that include emotional behavioral disability ("EBD") and other health impairments ("OHI"). If a child with a disability is evaluated and found to need only a related service, as defined by state law, the child is not considered a child with a disability for purposes of IDEA. 34 C.F.R. 300.7(a)(2)(i).

1. The child demonstrates severe, chronic and frequent behavior that is not the result of situational anxiety, stress or conflict.
2. The child's behavior described under par. (a) occurs in school and in at least one other setting.
3. The child displays any of the following:
   1. Inability to develop or maintain satisfactory interpersonal relationships.
   2. Inappropriate affective or behavior response to a normal situation.
   3. Pervasive unhappiness, depression or anxiety.
   4. Physical symptoms, pains or fears associated with personal or school problems.
   5. Inability to learn that cannot be explained by intellectual, sensory or health factors.
   6. Extreme withdrawal from social interactions.
   7. Extreme aggressiveness for a long period of time.
   8. Other inappropriate behaviors that are so different from children of similar age, ability, educational experiences and opportunities that the child or other children in a regular or special education program are negatively affected.

The District admits that the May 30, 2002 IEP meeting failed to include a regular education teacher from MATC as required by IDEA. 20 USC §1414(d)(1)(B)(ii), 34 C.F.R. §300.344(a)(2), Wis. Stat. §115.78(1m)(b). This is an obvious procedural error. It is necessary to get information about the Student's progress in the regular education class setting in order to make the determination of his need for special education.

1. The Fall River School District is the prevailing party.

2. The Student is not a child with a disability under the Individuals with Disabilities Education Act, 20 U.S.C. §1400, et seq, and Wis. Stat. ch. 115 and has not been denied a free and appropriate public education and is not entitled to tuition reimbursement or compensatory education.

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.