Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Milwaukee Public Schools

 
Case No.: LEA-03-013

In the Matter of [Student]
v.
Milwaukee Public Schools

 
Case No.: LEA-03-021

FINAL DECISION & ORDER

The Parties to these proceeding are:

[Student], by her parents [Father & Mother]
[Address]

Milwaukee Public Schools, by

Attorney Susan D. Bickert
[address]
Procedural Background

On February 21, 2003, an IEP team constituted by Milwaukee Public Schools (MPS) determined that the Student, [student], no longer had a speech or language impairment and thus was no longer eligible for special education. On April 11, 2003, a parent of the Student filed a request for a due process hearing under Wis. Stat. Subchapter V, Chapter 115, and the federal Individuals with Disabilities Education Act (IDEA), with the Department of Public Instruction (DPI). This due process hearing request was assigned case number LEA-03-013.

On May 15, 2003, a parent of the Student requested that MPS provide an independent educational evaluation (IEE). On May 19, 2003, MPS filed a request for a due process hearing with DPI, requesting as relief a determination that MPS's reevaluation of the Student, upon which the IEP team had determined that the Student was no longer eligible for special education, was appropriate. This due process hearing request was assigned case number LEA-03-021.

Cases LEA-03-013 and LEA-03-021 were consolidated for hearing and decision by order of the Division of Hearings and Appeals dated May 27, 2003.

The Parents raised numerous issues in their due process hearing request. See Scheduling Order dated May 2, 2003. As set forth on the record at the outset of the hearing on May 29, 2003, however, the scope of the Parents' due process hearing request was limited to review of the IEP team's eligibility determination. This limited scope would encompass matters that the Parents alleged adversely affected the eligibility determination, such as prejudice to the right of parental participation due to the alleged failure to provide the Parents with pupil records. This ruling was based upon application of 34 C.F.R. § 300.457, which limits the right to a due process hearing involving children who have been placed by their parents in a private school at their own expense to the procedures for evaluation and determination for eligibility.1

FOOTNOTE: 1Section 300.457 also permits a due process hearing respecting "child find" requirements, but that provision is not relevant here.

The consolidated due process hearing was commenced on May 29, 2003. Soon after the hearing had gotten underway, however, the Parties reported that they had reached an agreed resolution, and they requested additional time to allow them to formalize their tentative agreement. The Parties were unsuccessful in formalizing their tentative agreement, so the due process hearing resumed on July 14, 2003 and concluded on that date. The Parties later filed and served post hearing briefs and reply briefs.

With respect to case LEA-03-013, MPS has established that the Student no longer has a speech or language impairment and thus is no longer eligible for special education.

With respect to LEA-03-021, MPS established that the reevaluation of the Student was appropriate, so that the Parents are not entitled to an IEE at public expense.

Findings of Fact

  1. [Student] (the "Student") has a date of birth of [XXXXXXX]. Her parents are [Father] and [Mother] (the "Parents"). The Student resides with her Parents in the area served by Milwaukee Public Schools ("MPS").

  2. The Student had been determined to have a speech or language impairment and thus to be a child with a disability within the meaning of state and federal laws respecting special education. Milwaukee Public Schools first developed an IEP on November 6, 2000 to provide for special education for a phonological disorder.

  3. For the IEP for the period October 2, 2001 to October 1, 2002, an IEP team determined the Student's placement to be Thoreau school, operated by MPS. The Parents chose not to enroll the Student at Thoreau, however, but instead placed her in a private school at their own expense, where she has continued to receive her education. Though enrolled in this private school, MPS has provided special education to the Student.

  4. In October 2002, an IEP team determined to reduce the speech therapy sessions that MPS had been providing under an existing IEP from two 30-minute sessions per week to one such session. At the October 2002 IEP meeting, the IEP goals were rewritten so that the speech language pathologist (SLP) would no longer use the phonological approach in the therapy, but would work to increase the speech sound production of certain sounds. In particular, the "Goals and Objectives/Benchmarks" pages of the IEP focused on increasing the Student's proficiency in producing the sounds /ae/, /r/, /r/ blends, and /s/. At that October meeting, the SLP mentioned to the Parents that another IEP meeting would be coming up in March 2003, and that if the Student continued with her progress that it was possible that she could be dismissed from speech therapy at that time.

  5. The SLP maintained therapy data, notes, observations and tallies in her personal notebook. The SLP also created a separate "speech notebook" in which she would write notes about what was done in therapy sessions. The SLP would give the speech notebook to a Parent at the conclusion of each therapy session.

  6. The speech notebook contained information and data that was similar, but not identical to, the SLP's personal notebook. In her personal notebook, the SLP recorded information regarding the Student's progress, classroom observations, and tallies of the Student's production of certain sounds. The SLP frequently shared this information with the Parents in conversations and through the speech notebook, but the SLP did not share the actual notebook with anyone else. The SLP regularly asked the Parents whether there was any other information they wanted included in the speech notebook, and the Parents always responded in the negative.

  7. The Student continued to progress well in speech therapy after the October 2002 IEP meeting. On January 28, 2003, the SLP formally requested a reevaluation of the Student because she thought the Student might be ready for dismissal from speech therapy. MPS duly notified the Parents by sending them a "Notice of Reevaluation" informing them that MPS intended to reevaluate the Student to determine whether she continued to have a disability. An IEP team meeting to consider the Student's continued eligibility for special education was later scheduled for February 21, 2003.

  8. Before the scheduled IEP team meeting, the IEP team participants were polled as to whether they believed additional tests and data were needed for the reevaluation. The Parents informed MPS that they did not believe additional testing was necessary. Other members of the IEP also reported that they did not believe additional testing was necessary.

  9. The IEP team met on February 21, 2003 as scheduled. The team reviewed the Student's progress toward her IEP goals. One IEP goal was to increase production of the sound /ae/ from 0% to 75%. Full mastery of this sound is not expected in children until age eight. Seventy-five percent frequency of production for this sound is appropriate for a child of the Student's age. The SLP reported that the Student produced the /ae/ phoneme with greater than 90% accuracy. The Student exceeded her IEP goal and did not demonstrate a significant impairment.

  10. Another IEP goal was to increase sound production of /r/ and /r/ blends from 10% to 60%. The /r/ sound is a later developing sound that develops for ninety percent of children by age eight. The Parents expressed no concern about the Student's /r/ production. The Student exceeded the IEP goal, producing the /r/ sound with 75-80% accuracy and /r/ blends with 90% accuracy.

  11. The third and final IEP goal was to continue to produce certain /s/ patterns during language-based activities at least 98% of the time. The SLP determined that the Student produced consonant sequences and the /s/ phoneme with 100% accuracy. The Student met this goal and showed no impairment with the production of the /s/ sound.

  12. The SLP reported that language sample analysis revealed the Student's overall intelligibility to be 100%. The SLP reported further that the Student's linguistic forms and structures were not delayed. The SLP's information provided to the IEP team was based upon her observations of the Student during therapy sessions and in the regular education environment, discussions with the regular education teacher, and tallies of sound production during therapy sessions.

  13. At the IEP meeting, the regular education teacher reported that the Student demonstrated no difficulty communicating in the classroom and was easily understood by her teachers and was rarely asked to repeat herself, though she expressed concern regarding "future development of sound-letter relationships for beginning reading skills." (Exh. 2, p. 50).

  14. The Parents were active participants in the IEP meeting. They informed the IEP team that the Student makes her wants and needs known and that she is understood at home and in the classroom, though they expressed concern about grammatical structures and about the Student maintaining production of sounds in the future. The Parents voiced disagreement with the SLP's assessment respecting the Student's overall intelligibility, but they viewed the other data and information provided by the SLP and other members of the IEP team to be reliable.

  15. MPS provided the Parents access to all "pupil records" respecting the Student as that term is used in Wis. Stat. § 118.125(1)(d). MPS has not purged, destroyed, or intentionally failed to disclose or to provide to the Parents any pupil records respecting the Student. The Parents had all the pupil records respecting the Student at the time of the IEP meeting on February 21, 2003.

  16. The IEP Team discussed the criteria for speech or language impairment set forth in Wis. Admin. Code § PI 11.36(5) and concluded that the Student no longer met the criteria. At the conclusion of the IEP meeting, the Parents indicated their agreement with this conclusion.

  17. The Parents later changed their minds about the result of the IEP team meeting and filed a request for a due process hearing on April 11, 2003. This matter was assigned case number LEA-03-013.

  18. On May 15, 2003, the Parents requested that MPS provide an independent educational evaluation (IEE), whereupon MPS filed a separate request for a due process hearing to determine whether its reevaluation of the Student was appropriate. This matter was assigned case number LEA-03-021.

  19. The Student's conversational intelligibility is not significantly affected.

  20. The Student does not demonstrate consistent errors in speech sound production beyond the time when 90% of typically developing children have acquired the sound. The Student's sound production is appropriate for her age.

  21. The Student is not a child with a disability within the meaning of the special education laws.
Discussion
LEA-03-013

The state criteria for determining a child's eligibility for special education for a speech or language impairment are set forth in Wis. Admin. Code § PI 11.36(5). Only subparagraph (5)(b)(1) is implicated in this matter. The pertinent provisions of section PI 11.36(5) are as follows:

(5) SPEECH OR LANGUAGE IMPAIRMENT. (a) Speech or language impairment means an impairment of speech or sound production, voice, fluency, or language that significantly affects educational performance or social, emotional or vocational development.
(b) The IEP team may identify a child as having a speech or language impairment if the child meets the definition under par. (a) and meets any of the following criteria:
1. The child's conversational intelligibility is significantly affected and the child displays at least one of the following:
a. The child performs on a norm referenced test of articulation or phonology at least 1.75 standard deviations below the mean for his or her chronological age.
b. Demonstrated consistent errors in speech sound production beyond the time when 90% of typically developing children have acquired the sound. The preponderance of the evidence establishes that the child's conversational intelligibility is not significantly affected and thus she does not meet the threshold criterion of subparagraph (b)1. The Parents reported to the IEP team that the Student "clearly makes her wants and needs known and is understood at home and in the classroom." The regular education teacher from the Student's private school reported that the Student "demonstrates no difficulty communicating in the classroom" and "expresses herself well." The SLP reported that "language sample analysis revealed overall intelligibility to be 100%." In the face of this substantial evidence from the IEP team members, including the Student's certified and licensed SLP, little weight is accorded to the Student's speech performance at the due process hearing, in which some of her responses were not wholly intelligible. The Student's speech formation in the uncommon environment of a due process hearing does not overshadow the observations, findings and conclusions of the IEP team members. Unlike the factfinder at the due process hearing, the IEP team members have observed and assessed the Student in more normal environments over time and are proficient at assessing the age appropriateness of a child's speech proficiency. The Student's conversational intelligibility is not significantly affected, and thus she does not meet the threshold criteria for speech language impairment set forth in Wis. Admin. Code § PI 11.36(5)(b)1.

Moreover, the Student does not meet either of the alternative essential criteria for speech or language impairment specified of subparagraph (b)1.a. and b. There is no suggestion that the Student's articulation or phonology is 1.75 standard deviations or more below the mean for her chronological age, and thus she does not meet the first essential alternative criterion specified in subparagraph (b)1.a. The evidence points overwhelmingly to the conclusion that the Student did not demonstrate consistent errors in speech beyond the time when 90% of typically developing children have acquired the sound, and thus the Student thus does not meet the second alternative essential criterion specified in subparagraph (b)1.b.

The Parents had at their disposal all pupil records to assist them in preparing for the IEP meeting of February 21, 2003. The personal notebook of the SLP was not a pupil record to which the Parents were entitled because the SLP made and used this notebook for her personal use only. Wis. Stat. § 118.125(1)(d).2 In any event, the SLP communicated the salient information that she recorded in her personal notebook to the Parents through the speech notebook that she transmitted to the Parents, through her regular discussions with the Parents, and by her contributions to IEP team on February 21, 2003.

FOOTNOTE: 2 Section 118.125(1)(d) provides that the term 'pupil records' "does not include notes or records maintained for personal use by a teacher or other person who is required … to hold a certificate, license or permit if such records and notes are not available to others." The SLP did not make her personal notebook available to others, so it is not deemed to be a "pupil record."

MPS properly determined that the Student no longer had a speech or language impairment in its IEP meeting of February 21, 2003.
LEA-03-21

MPS filed a due process hearing request in response to the Parents' request for an independent educational evaluation (IEE) and requested as relief a determination that its reevaluation of the Student was appropriate. State and federal law required MPS either to initiate the IEE or to request such a due process hearing. Wis. Stat. § 115.80(1)(b); 34 C.F.R. § 300.502(b)(2). MPS has the burden to establish at the due process hearing that its reevaluation was appropriate.

School districts may reevaluate a child with a disability when conditions warrant, and in the conduct of the reevaluation are required to meet the criteria specified under Wis. Stat. § 115.782(2). Wis. Stat. § 115.782(4)(a)(2). Wisconsin Stat. § 115.782(2) provides as follows:

(2) CONDUCT OF EVALUATION.
(a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following:
1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities.
2. Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
3. Ensure all of the following:
a. That tests and other evaluation materials used to assess a child under this section are selected and administered so as not to be racially or culturally discriminatory and are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so.
b. That any standardized tests that are given to the child have been validated for the specific purpose for which they are used, are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of such tests.
c. That the child is assessed in all areas of suspected disability.
d. That assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are used.
(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.
b. The present levels of performance and educational needs of the child.
c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.
d. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable, annual goals specified in the child's individualized education program and to participate, as appropriate, in the general curriculum.
(c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b)2.
(d) If a child is attending a public school in a nonresident school district under s. 118.51 or 121.84 (1)(a) or (4), when the individualized education program team conducts its initial evaluation of the child or any reevaluation of the child under sub. (4), the team shall include at least one person designated by the school board of the child's school district of residence who has knowledge or special expertise about the child.
(e) Each individualized education program team participant who administers tests, assessments or other evaluation materials as part of an evaluation or reevaluation of a child under this section shall prepare and make available to all team participants at a team meeting a written summary of the participant's findings that will assist with program planning. MPS has established that its conduct of the reevaluation met this standard. MPS did not use any single procedure or rely on any single source of information. It received and considered information from the parents, the private school regular education teacher, the Student's SLP, and another licensed speech language pathologist who served as the local educational agency (LEA) representative for the IEP team. All these persons, including the Parents, were on record as believing that no additional data were necessary to determine whether the Student continued to be a child with a disability. The IEP team members reasonably concluded that the data and information available was sufficient from which to make a determination whether the Student met the criteria for speech language impairment in Wis. Admin. Code § PI 11.36(5).

The Parents recognized that the Student's speech performance had been improving and that a potential outcome of the February 21, 2003 IEP team meeting was that the Student would be deemed no longer eligible for special education. Except for the SLP's assessment that language sample analysis revealed overall intelligibility to be 100%, the Parents viewed the data and information supplied by the IEP team members to be reasonably reliable. No information presented at the due process hearing reasonably controverts the objective data and information presented to and relied upon by the IEP team, including the SLP's assessment respecting overall intelligibility to be 100%. The techniques used by the SLP to assess the Student's speech skills, such as informal tallies or the frequency of certain sound productions, were appropriate assessment tools and strategies reasonably designed to determine whether the Student continued to meet the eligibility criteria of Wis. Admin. Code § PI 11.36(5) for speech or language impairment.

MPS's reevaluation of the Student was appropriate, so MPS is not required to initiate the IEE requested by the Parents.
Conclusions of Law

  1. The Student does not have a speech or language impairment as defined in Wis. Admin. Code § PI 11.36(5) and is not a child with a disability as defined in Wis. Admin. Code § 115.76(5).
  2. The reevaluation that resulted in the determination that the Student no longer had a speech or language impairment was appropriate, so MPS is not required to initiate the IEE requested by the Parents.
ORDER

MPS's determination that the Student no longer has a speech or language impairment is sustained.

MPS is not required to initiate an independent educational evaluation of the Student at public expense as requested by the Parents.

Dated at Milwaukee, Wisconsin on September 9, 2003.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
819 N. 6th Street, Room 92
Milwaukee, Wisconsin 53203-1685
Telephone: (414) 227-1860
By: _____________________________
William S. Coleman, Jr.
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 20 U.S.C. §1415 and 34 C.F.R. §300.512.