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Before The
The Parties to this proceeding are: Hale's Legal Services P. O. Box 114 Baraboo, WI 53913-0114 Poynette School District, by Lathrop & Clark L L P 740 Regent Street, #400 P O Box 1507 Madison, WI 53701-1507 On November 20, 2002, the Department of Public Instruction received a request for a due process hearing under Wis. Stats. Chapter 115, and the federal Individuals with Disabilities Education Act ("IDEA") from [Father] and [Mother] (the "Parents") on behalf of [Student] (the "Student") on November 20, 2002, and referred the matter to this division for hearing. Pre-hearing telephone conferences were held on November 27, 2002, December 13, 2002, January 10, 2003, February 7, 2003, March 7, 2003 and April 11, 2003. At the April 11, 2003 pre-hearing telephone conference, the Poynette School District (the "District") moved to dismiss this action based upon the Parents refusal to allow the District to evaluate the Student, to determine eligibility under IDEA. The decision on the motion to dismiss is due by July 31, 2003. The only remedy requested in this matter is tuition reimbursement for the unilateral placement of the Student in a private school.Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. §802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct. App. 1995). The grant of summary judgment is appropriate when the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406,410, 570 N.W.2d 739 (Ct. App. 1997). No genuine issue of material fact exists here. The material facts are as follows. The Student is a 12-year-old child who resides with his parents within the District. The Student has never been identified as a child with a disability under the Individuals with Disability Education Act ("IDEA"). The Parents requested that the Student attend a different public school through open enrollment in February of 2002. This request was denied in March of 2003 when the Student was referred by the District for an initial evaluation to determine eligibility for special education and related services. The District formed an Individual Education Program ("IEP") team for the Student and the IEP team determined that further testing was necessary to determine if the Student was a child with a disability under IDEA. The District sent a consent form to the Parents for additional tests and the Parents returned the form indicating that they refused to give their consent to any additional tests by the District. The Parents unilaterally enrolled the Student in a private school for the 2002-2003 school year. The Parents filed a request for a due process hearing on November 20,2002 requesting the District to reimburse the Parents for the tuition at the private school for the Student. At the pre-hearing telephone conferences, both parties agreed to an evaluation of the Student by a third party. The District agreed to review the evaluation, upon completion and make a determination of the Student's eligibility under IDEA, only if the District determined that no additional testing was required. The District reviewed the independent evaluation done by Gunderson Lutheran Clinic dated March 25, 2003. The District made a determination that additional testing was needed before they could determine if the Student was a child with a disability under IDEA. The Parents again refused to make the Student available for additional testing at a pre-hearing telephone conference on April 25, 2003 and the District moved to dismiss the Parent's request for a due process hearing.The District is required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq., and Wis. Stat. Ch.115, to ensure that children with disabilities receive an education that is both appropriate and free. A free and appropriate public education ("FAPE") is one that is "specially designed toward the unique needs of the handicapped child, supported by such services that are necessary to permit the child to benefit from the instruction provided. Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 188-189 (1982). Before the initial provision of special education and related services to a child under the requirements of IDEA, the District must conduct a full and individual evaluation of the child. 34 C.F.R. §300.531. In conducting evaluations under the IDEA, a variety of assessment tools and strategies must be used to gather relevant functional and developmental information about the child, including information provided by the parents. Further, information related to enabling the child to be involved in and progress in the general curriculum must be gathered that may assist in determining whether the child is a child with a disability. 34 C.F.R. §300.532(b)(1) and (2). In this case, the Student was evaluated independently by evaluators chosen by the Parents, and the District determined that the independently performed evaluation was not sufficient to determine the Student's eligibility under IDEA. There is no requirement that the District must make an evaluation of eligibility under IDEA based upon an independent evaluation. In fact, the District is required under IDEA regulations to perform a variety of tests in order to accurately reflect the child's specific areas of educational need and not merely a single general intelligence quotient. 34 C.F.R. §300.532(d). No single procedure may be used as the sole criterion for determining an appropriate educational program for a child and the child must be assessed in all areas of suspected disability, including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status and motor abilities, if appropriate. 34 C.F.R. §300.532(f) and (g). It is the District's obligation under these regulations to choose and perform the tests to determine the Student's eligibility under IDEA. Because the Parents have refused, and continue to refuse to allow the District to evaluate the Student, they have no right to tuition reimbursement for the Student's private school tuition. The Seventh Circuit U.S. Court of Appeals has specifically held that parents who, because of their failure to cooperate, do not allow a school district a reasonable opportunity to evaluate their disabled child, forfeit their claim for reimbursement for a unilateral private placement. Patricia P. v. Bd. Of Educ. Of Oak Park and River Forest High Sch. No. 200, 203 F. 3d 462 at 469, 31 IDELR 211 (7th Cir. 2000). Although the Parents have alleged that their refusal to allow the District to evaluate the Student was reasonable, they have stated no legal basis for this assertion.IT IS HEREBY ORDERED that the due process hearing request filed on November 20, 2002 is dismissed because [Father] and [Mother], parents of the student, [Student], have no right to the requested relief of tuition reimbursement for a unilateral private school placement as they have refused and continue to refuse to allow the Poynette School District to evaluate [Student] to determine eligibility under the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq., and Wis Stat. Ch. 115. Dated at Madison, Wisconsin, on July 28, 2003.DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705-5400 Telephone: (608) 266-7709 FAX: (608) 264-9885 By: _____________________________________ Diane E. Norman Administrative Law Judge 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. A copy of the appeal should also be sent to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400. The Division will prepare and file the record with the court only upon receipt of a copy of the appeal. |