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Before
The
The Parties to this proceeding are: [Student], by Attorney Jeffrey Spitzer-Resnick
Reedsburg School District, by Attorney Joann Hart PROCEDURAL HISTORY On September 24, 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 parent, [Mother], (the "Parent") and referred the matter to this Division for hearing. The due process hearing was held on November 4, 5, and 6, 2002. The parties submitted post-hearing briefs on November 27, 2002. At the request of both parties, the date for issuance of a decision in this matter was extended to December 11, 2002. ISSUES
FINDINGS OF FACT
Footnote: The first volume of the transcript does not contain line numbers after page 48. Therefore, citations to pages 48 through 145 of the transcript will not contain line number references.
DISCUSSION 2002-2003 Placement Offer The IDEA requires that all children with disabilities are offered a FAPE that meets their individual needs. 20 USC § 1400 (d); 34 CFR § 300.1. The requirement of FAPE means that a child receives personalized instruction to meet the unique needs of the child, with sufficient support services to permit the child to benefit educationally from that instruction. Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982). To the maximum extent appropriate, children with disabilities are to be educated with children who are not disabled, but more restrictive placements are allowed "when the nature or severity of the disability of a child is such that education in regular classes with the use of supplmentary aids and services cannot be achieved satisfactorily." 20 USC § 1412(a)(5)(A); § 115.79(4), Wis. Stats. In addition, the IDEA mandates that the IEP team consider special factors with regard to children who are deaf or hearing impaired. The IEP team shall: . . . in the case of a child who
is deaf or hard of hearing, consider the child's language and communication
needs, opportunities for direct communications with peers and professional
personnel in the child's language and communication mode, academic level, and
full range of needs, including opportunities for direct instruction in the
child's language and communication mode. The courts have long recognized that a student with a hearing impairment may be appropriately educated in a centralized or residential program for the hearing impaired, based upon the student's individual needs, rather than in the neighborhood school. See Lachman v. Illinois State Bd. Of Educ., 852 F.2d 290 (7th Cir. 1988); see also French v. Omaha Public Schools, 766 F. Supp. 765 (D. Neb. 1991). In one such case, the Fifth Circuit noted that the scarcity of interpreters that existed in the area would be worsened if hearing impaired students attended their neighborhood schools rather than a regional program. See Flour Bluff Indep. School Dist. v. Katherine M., 91 F.3d 689 (5th Cir. 1996). Overall, the record in this case supports a determination that at least a partial placement at WSD, such as the two days per week proposed by the District, is necessary to meet the Student's particular needs. It is significant that all of the Student's current and past special education teachers who testified at the hearing supported the District's proposed placement of the Student. Their testimony was particularly credible because the educators acknowledged concerns they have about the proposed placement, but described ways that their concerns could be adequately and appropriately addressed so that the placement would succeed for the Student. (Tr. 298-301, 420-421) The testimony of Nancy Keith, a CESA-5 teacher of the hearing impaired, was particularly persuasive and credible. She has known the Student for six years, and she currently provides two hours of direct instruction to the Student each day in the Portage School District. Ms. Keith also provided direct instruction to the Student in his home in the past. In her opinion, WSD could appropriately meet the Student's needs in ways that the Portage program alone can not, such as providing opportunities for direct communication with students and teachers in his language and allowing for more hours of direct instruction in his language. (Tr. 577-580) Ms. Keith knows the two deaf high school students who are in regular education at Portage, and she does not believe that the Student could realistically have the same opportunities for direct communication with them or any other students at Portage as he would have with the students at WSD. (Tr. 580-584) Two WSD employees also presented compelling testimony as to the appropriateness of the WSD placement for the Student. Connie Gartner, a principal at WSD, and Rene Ambrose, an adaptive education teacher at WSD, observed the Student at Portage and communicated with his current teachers at Portage. Ms. Ambrose described in detail the classes that the Student would be enrolled in at WSD and the classmates that would likely be in his classes, as well as the benefits that the Student would gain from the direct instruction in his language and being able to communicate with peers and professionals in his language. (Tr. 510-516) Her testimony was very persuasive based upon its specificity and the direct correlation she made between WSD's program and the Student's communication, social, and academic needs. The testimony of Dr. Amy Otis-Wilborne, the Student's educational expert, was given less weight in the determination because of its relative vagueness, lack of specificity, and inconsistency. She testified that she believes the Student could benefit from mainstreaming in regular education classes and that the District could provide him with opportunities for direct instruction with the two mainstreamed deaf high school students in Portage or a hypothetical student that would be willing to learn sign language. (Tr. 944:13-25, 945:1-18) However, she did not adequately explain how these options would realistically work, in light of the Student's communication needs, social functioning, and academic level. Dr. Otis-Wilborne expressed concern about lack of continuity in a program split between Portage and WSD, yet did not express the same concern about the Parent's proposed program which is split between Portage and Reedsburg. (Tr. 1018-1019) The Parent proposes that the Student be educated for two days per week in the Reedsburg School District, rather than at WSD, in addition to the three days per week at Portage. She testified that she believes he would benefit from vocational and other classes in the Reedsburg High School, as well as vocational experiences in the Reedsburg community. (Tr. 1168-1169) She wants him prepared for "real life" rather than go to WSD which she describes as "an artificially created environment that is all ASL [American sign language] and deafness." (Tr. 1112-1113) It is not clear how the legal requirements related to direct instruction and direct communication with peers and professionals in the Student's primary language would be addressed, if at all, in a placement at the Reedsburg High School. The Student undoubtedly would benefit from transition and vocational experiences in his home community. However, he has over four more years of special education in which he can pursue transition goals, and vocational experiences in Reedsburg will be all the more important as he gets closer to the end of his public education. Moreover, he has already had some vocational experience in his home community during the summer. (Tr. 1138) His transition needs can be met in places other than Reedsburg School District, but the evidence shows that his direct instruction and direct communication needs in his primary language can not be provided for in the Reedsburg School District. There is no question that the lengthy commute from the Student's home to WSD is far from ideal. However, the proximity of the school is not the overriding factor to be considered in determining the least restrictive environment. See Lachman, 852 F.2d 290 (7th Cir. 1988). The Student's neurosurgeon's opinion is that this decision must be made by weighing the risks against the benefits and that the longer the Student is away from his Parent, the greater the medical risk to him. (Tr. 870:16-21) The District is not proposing that the Student's school day be lengthened while he attends WSD. He will not be spending more hours away from his Parent than while he is attending school in Portage. In addition, the District will train the Student's driver in proper medical protocols, hopefully with the Parent's assistance. Overall, the evidence indicates that medical risks to the child will be minimally increased, if at all, by attending WSD two days per week. Therefore, I find that the educational benefits to the Student of attending WSD two days per week outweigh any medical risks posed by the commute. The placement offer that the District proposed for the Student on May 20, 2002, is based upon his individual needs and will provide the Student with a FAPE in the least restrictive environment, in accordance with the law. The Student's Communication Needs In Rowley, the Supreme Court offered a two-prong test to determine if a child has received FAPE: (1) whether there has been compliance with the IDEA's procedural requirements; and (2) whether the IEP is reasonably calculated to provide educational benefits. 458 U.S. 176, 206-07. A procedural violation must be found to have resulted in substantive harm to the child and parents for relief to be granted on that basis. See Knable ex re. Knable v. Bexley City School District (citing Metropolitan Bd. of Public Educ. v. Guest), 193 F.3d 457, 464-65 (6th Cir. 1999). In developing the IEP of a child with a disability, the IEP team must consider whether the child requires assistive technology devices and services. 34 CFR 300.346(a)(2)(v); § 115.787 (3)(b)5, Wis. Stats. In addition, as previously stated, the IEP team must consider several special factors related to communication and language when dealing with a child with a hearing impairment. 34 CFR 300.346(a)(2)(iv); § 115.787 (3)(b)4, Wis. Stats. An IEP team must consider the results of any reevaluation of a child in reviewing and, as appropriate, revising the child's IEP. 34 CFR 300.321(b). The IEP developed for the Student on January 7 and 17, 2002, contains a description of the Student's assistive technology needs and particular devices and services that he needs. (Exhibit 7, Tr. 203-205) On the summary page of the IEP, the box labeled "assistive technology" is not checked as a related service needed by the Student. (Id.) The fact that the IEP team did not list the assistive technology devices and services again on the summary page may have been an oversight, but it does not negate the fact that the IEP complied with legal requirements. This omission does not constitute a procedural violation that caused the Student and Parent substantive harm. The IEP team did consider the Student's need for assistive technology services and devices, and the IEP is reasonably calculated to provide him with educational benefits. After the Student re-enrolled in the District, the District began its own evaluation of his communication and language needs that the Parent had consented to in Mauston. The evaluators completed their evaluations by March 25, 2002. (Exhibit 13) The Parent argues that the District's evaluations focused too much on the Student's sign language skills, rather than on his specific assistive technology needs. (Tr. 1121-1122, 1125-1126) However, Ms. Spees' report describes the Student's communication needs, including assistive technology. (Tr. 111, 200-202, 339-340) The fact that Ms. Spees' report does not recommend a specific augmentative communication device for the Student does not invalidate the evaluation. Ms. Spees is a professional with 20 years of experience in the area of assistive technology. (Tr. 338-339) Furthermore, the Student's primary language is sign language, and it is unreasonable for the Parent to expect that a language and communication evaluation will not contain a great deal of information about the Student's skills and needs in his primary language. The District scheduled an IEP team meeting for April 4, 2002, to discuss the evaluation reports. (Tr. 244:6-8, 1123:11) The Parent admits that she asked the IEP team to discuss placement, rather than the evaluation reports. (Tr. 1124:4-14) At the May 20, 2002 IEP team meeting, the IEP team again focused on the Student's placement and did not revise the Student's IEP. Although the IEP team did not fully consider the evaluations during a review of the IEP, the record does not show that this caused substantive harm to the Student and Parent. The Student's IEP is reasonably calculated to provide him with educational benefits in the area of assistive technology. Compensatory Education Compensatory education is an equitable remedy that is available to a Parent who establishes a denial of FAPE under the IDEA. See Miener v. State of Missouri, 800 F.2d 749 (8th Cir. 1986). As stated previously, Rowley established a two-part test to determine if a child has received FAPE. 458 U.S. at 206-07. A procedural violation constitutes a denial of FAPE if it seriously infringes on a parent's opportunity to participate in the IEP process. W.G. v. Bd. of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1992). The record refutes the Parent's argument that the District unilaterally determined the Student's placement and violated her procedural rights by not holding another IEP team meeting. The District held two IEP team meetings in January to develop the Student's IEP and placement, and the Parent participated in both of those meetings. The IEP team discussed several placement options, most of which were determined to be inappropriate and/or unavailable. When the District proposed the WSD placement, the Parent stated that the Student "would go to WSD over [her] dead body and that [she] would pull him out and home school him first." (Tr. 1113:7-9) The Parent then requested another IEP meeting in order to have the Student's therapist present. However, the therapist had already sent a letter to the District on January 14th because she could not attend the January 17th meeting, and in her letter she stated her position opposing a WSD residential placement for the Student. The District agreed to the parent's request to hold another IEP team meeting but did not do so. The Parent had clearly stated her refusal to consider a WSD placement, the only placement of many options considered that was available and would allow appropriate implementation of the Student's IEP. Therefore, it was reasonable for the District to conclude that further discussion of placement would be futile. The District's decision to offer placement at WSD without holding another IEP team meeting was not the most diplomatic decision, but it did not rise to the level of a procedural violation that infringed on the parent's opportunity to participate in the IEP process. Moreover, in a letter to the Parent, the District offered to hold another IEP team meeting if the Parent had any new information to provide. The Parent she did not respond to that offer. Applying the second part of the Rowley test, the record shows that the IEP developed on January 7 and 17, 2002 was reasonably calculated to provide educational benefit to the Student. Based upon the facts then known to the District, which did not include information from Dr. Iskandar, the residential placement offer at WSD was an appropriate placement for the Student in the least restrictive environment. It would be inequitable to measure the appropriateness of an IEP and placement offer after-the-fact. See Carlisle Area School District v. Scott P., 23 IDELR 293 (3rd Cir. 1995). When it determined consensus was not possible among the IEP team, the District properly met its statutory obligation by offering to provide the Student with a FAPE based upon his individual needs. The Parent refused the appropriate program and placement offered by the District. The District could have initiated truancy proceedings against the Parent for failing to send her child to school as required by Wisconsin law. Instead, it provided the Student with one hour per week of direct instruction in his home. It would be inequitable to award compensatory education for the period from January to June 2002 because the District offered a FAPE to the Student during that time. CONCLUSIONS OF LAW
ORDER The Student's placement for the remainder of the 2002-2003 school year will be the placement offered by the District on May 20, 2002. The Parent's request for compensatory education is denied. Dated at Madison, Wisconsin on December 11, 2002. STATE OF WISCONSIN 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. |