Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

1. [Father] and [Mother] (the "Parents") are the parents of [Student] (the "Student"), whose date of birth is [XXXXXXX]. The Student resides with his Parents in the area served by [Unnamed] School District (the "District") and had attended public schools in the District until his Parents enrolled him in a private school as of May 5, 2003, where he remains enrolled for the 2003-2004 academic year.
   Initial Evaluation and Eligibility for Special Education

2. In March 2001, when the Student was in the 5th grade, the District identified him to be a "child with a disability" within the meaning of the state and federal special education laws, by reason of having an "other health impairment." This determination was based in part on the diagnosis of a school psychologist that the Student had attention deficit/hyperactivity disorder (impulsive type), and upon the Parents' report that the Student had been diagnosed with Tourette syndrome and obsessive compulsive disorder.

3. As part of the District's initial evaluation completed in March 2001, a speech language pathologist evaluated the Student by conducting an observation and by administering certain tests, including a "Test of Pragmatic Language," in which the Student scored 84 against a standard score of 115. ("Pragmatic language" denotes the social rules for using language, and includes such things a body language, tone, how and when to interrupt, and knowing what to say and what not to say, among other social factors that affect communication.) The speech language pathologist summarized her findings in part as follows:

   It appears that [the Student's] understanding of appropriate social language skills … [is] at age appropriate levels. However, he does not always use these skills effectively. It is difficult to determine the extent to which health factors are affecting his behavior and interactions with classmates and adults. [The Student] needs programming where appropriate goals can be developed…. These goals might include: working cooperatively with a partner or group, building a positive reputation, being formal or casual appropriately, dealing with teasing, and disagreeing politely.

   Previous Due Process Hearing Request

4. The present matter is the Parents' second request for a due process hearing. The Parents first requested a due process hearing on January 18, 2002. Among the matters alleged in the first hearing request was the District's "failure to follow the [existing] IEP and revisions which resulted in behavioral incidents" on two separate dates, "and an indication by the [District] of a refusal to follow the IEP and revisions with future behavioral issues."

5. On or about May 7, 2002, the District and the Parents settled the first due process hearing through an agreed resolution. A term of the settlement agreement required the District to convene an IEP team meeting for the sole purpose of "formalizing" the draft of a new IEP ("individualized educational program") that the IEP team had developed and agreed upon during the pendency of the due process hearing request. Attorneys for both the Parents and the District were involved in the development of this draft IEP.
   2002-2003 IEP

6. As specified in the settlement agreement, the IEP team thereafter duly approved the draft IEP. The IEP's inclusive dates were May 28, 2002 to May 27, 2003.

7. The Student's placement under the 2002-2003 IEP was at his neighborhood school, [Unnamed] Middle School, where he would be involved full time in the general curriculum for the seventh grade. The Student was to receive educational services wholly in the regular education classroom unless "he is ill, fatigued or in a pre-storm or storm levels of his disabilities." The IEP provided that in the event of "storms" or "pre-storms," the Student would go to a "safe environment where he can gain control of his emotions" (with a special education teacher to be available for support), and upon regaining control for him to return to the regular education classroom.

8. The 2002-2003 IEP consists of nineteen pages, plus eighteen pages of attachments that for the most part describe the Student's disabilities, how they affect his behavior, and strategies for addressing the unwanted behaviors.

9. The IEP describes the Student's present level of educational performance ("PLEP"), focusing primarily on his behavior and his learning skills. The PLEP notes that the Student "needs training in social skills," that he "has great difficulty recognizing social cues apparent to other students," that he frequently interrupts teachers and students, and that he "has difficulty in small groups due to his inability to accurately communicate his thoughts and ideas."

10. The PLEP also recites twenty-two specific concerns of the teachers and Parents respecting the Student's learning skills, including the following: "inconsistent handwriting," "very slow with written work," "unable to follow three step direction," "easily distracted by auditory stimulus in the classroom," "easily distracted by visual stimulus," "frequently appears to be daydreaming," "difficulty accepting help from adults/peers," "frequently late to class," "difficulty stopping an activity when instructed," "difficulty changing classes," "frequently unable to read without repeating words," "difficulty staying focused on task at hand," "difficulty transitioning from one lesson to another," "requires full assistance doing homework," and "quantity of homework cannot be completed in allowed time."

11. The PLEP recounted that the Student had scored "in the high average to superior intelligence range" in the Woodcock Johnson III test given in January 2001, and that he had achieved a grade point average in the general curriculum of 3.875 in the first semester of the sixth grade (academic year 2001-2002).

12. The PLEP concluded that the Student's disabilities "seriously affect his ability to participate effectively in class."

13. The IEP includes three annual goals as follows: (a) "[the Student] will decrease the number of verbal interruptions of peer and adults," (b) "[the Student] will identify when his emotions are approaching disinhibition or pre-storm levels," and (c) [the Student] will be able to express his ideas/thoughts in small group situations."

14. The IEP included a four-page behavior intervention plan ("BIP") and a two-page "emergency plan." The BIP states that the Student displays "disinhibited" behavior, and "storms" or "pre-storms" as a response to stress and anxiety. The Student's disinhibited behavior may include inappropriate language, disrespectful behavior, explosive anger, and sulking. The BIP identifies circumstances likely to cause disinhibited behavior, storms, or pre-storms, strategies to employ to diminish the incidence of such behavior, and techniques to employ to de-escalate such behavior.

15. The BIP provided that one strategy for decreasing the likelihood of a "storm" was to file a "behavior referral" or "conduct report" "for serious disinhibited behavior."

16. The BIP provided that after a "storm" had occurred a teacher "should prepare a written Behavior Referral or Conduct Report" regarding the behavior, which would be provided to the Parents with a view toward meeting with school personnel to discuss the conduct. The BIP provided further that if the conduct reported was of the nature that "would result in an in-school or out-of-school suspension for any other student," the special education teacher should recommend to the school principal that the principal impose such discipline. The school principal in turn would determine whether such formal discipline was warranted, and was authorized to impose and immediately carry out warranted formal discipline so long as it did not result in a "change in placement" within the meaning of the special education laws.

17. The only "special education" that the IEP prescribed (other than matters relating to taking certain diagnostic tests) was: (a) the support of a special education teacher when the Student is at "disinhibition, pre-storm, and storm level," and (b) to allow the Student "extra time to get to class without punishment for tardiness."

18. The IEP prescribed twenty-three "supplementary aids and services" including the following: allow Student to go to special education room when he needs time to regain control or composure; provide an extra set of books; provide the Student with foreshadowing of transitions of changes in schedules; allow the Student to use a calculator under certain conditions when other students may not; remind the Student several times, several minute apart, of an upcoming change in activities; provide the Student a quiet setting for test taking; allow tests to be read to the Student if needed; allow additional time for completion of tests if needed; allow retaking of any failed math test the next school day; seat the Student next to a "responsible student" to help him stay on task; teachers and staff were to endeavor to ignore minor behaviors that were not seriously disruptive; the development and use of code words to communicate to the Student when his behavior is inappropriate; and, having the Student's special education teacher accompany him to every physical education class (an environment in which unwanted behaviors frequently emerged).

19. The IEP prescribed the following "program modifications or supports for school personnel": (1) "house" teachers to provide peer training on the Student's disabilities, (2) peers in physical education to receive training about the Student's disabilities, (3) substitute teachers to receive the BIP and general information regarding the nature of the Student's disabilities, and (4) educators and other personnel to attend inservice training conducted by an expert on Tourette Syndrome and "Tourette Syndrome Plus."

20. The IEP did not provide for any programmed social skills instruction. When the IEP was being formulated, IEP team members suggested that a special education teacher could provide such training, but outside the regular education classroom. The Parents firmly believed that the Student should be educated wholly in the regular education classroom and expressed their extreme disfavor of any such special education direct instruction outside the regular education classroom. Other members of the IEP team assented to their wishes.

21. The IEP did not provide for any formalized educational services to address the Student's pragmatic language skills. A special education teacher who was a member of the IEP team recognized that the Student had difficulties in this area at times but did not perceive these difficulties to interfere or affect his academic progress.

22. At the commencement of the 2002-2003 school year, the Parents discussed possible social skills training with the special education teacher. The Parents maintained their wish that the Student receive his educational programming entirely in the regular education environment and that he not receive "pull out" services from the special education teacher. During the course of the 2002-2003 school year, the District advised the Parents that the Student's guidance counselor could be available to provide one-on-one help for the Student on specific difficulties with social skills, but the Parents rejected such instruction and the District did not further pursue it.
    Implementation of 2002-2003 IEP

23. The District provided the in-service training as required by the IEP before the beginning of classes for 2002-2003. The person who provided the training had special expertise in the education of children with Tourette syndrome, and had been suggested by the Parents to provide the training.

24. The IEP required teachers to provide peer training respecting how the Student's disabilities affected him, but the IEP did not specify the form that the peer training would take. The District initially implemented this requirement by providing impromptu peer training when other students reacted or behaved inappropriately toward the Student. The Parents believed that providing more formal or scripted peer training in a large group setting was the better way to meet the IEP requirement, and voiced these views soon after the start of the school year. The District complied with the Parents' requests. On November 4 and 5, 2002, the District provided peer training during the homeroom period to small groups of approximately 25 students each. On November 12, 2002, the District provided formal peer training to the same children, but this time in a single assembled group, about 100 children altogether. The Parents were present for this latter session and were pleased with the training, though they would have preferred that it have been done sooner in the school year. The District complied with the IEP's requirement to provide peer training.

25. Through the course of the academic year, the Student's core teachers met as a group for one period each school day, and during this time included discussion of the Student and implementation of his IEP as the need arose, including discussion of strategies specified in the IEP to address any unwanted behaviors. The special education teacher would regularly confer and consult with the regular education teachers during this daily period and at other times as needed, respecting implementation of the IEP.

26. In the first quarter of the 2002-2003 school year, the Student made positive progress toward the IEP goals of decreasing interruptions and expressing himself in small group settings.

27. The Student made little progress during the first quarter on the remaining IEP goal of identifying when his emotions were approaching pre-storm levels. As required by the BIP, upon the incidence of "serious disinhibited behavior" or for "storms," the Student's teachers issued discipline referrals during the first quarter for the following incidents:
    1. On October 29, 2002, the Student called another student a "jerk," and then upon being admonished by his science teacher said to him "then you must be an even bigger jerk."

    2. On October 30, 2002, the Student was disrespectful to his choir teacher, and threw a folder down and left the room saying that he quit.

    3. On October 31, 2002, in response to a request from his science teacher, the Student said in a disrespectful and condescending tone, "What part of 'print' don't you understand?"

28. The two referrals by the science teacher in the first quarter triggered a provision of the BIP that mandated holding a meeting between the Parents and staff regarding the Student's behavior. The required meeting was held. The District imposed no formal disciplinary action for the behaviors that led to the October 2002 referrals.

29. In the second quarter of the 2002-2003 school year (November through mid-January), the Student continued making positive progress on expressing himself in small groups, but regressed on the goal of reducing interruptions. Minor interruptions occurred daily, though major interruptions were not common. The Student regressed toward the goal of identifying when his emotions were approaching pre-storm levels. As required by the BIP, in the second quarter the Student's teachers filed discipline referrals or conduct reports for the following incidents:
    1. On November 5, 2002, the Student was profane and disrespectful in gym class to the special education teacher (who was there to monitor him as required by the IEP). No formal disciplinary action was taken.

    2. On November 11, 2002, the Student called his gym teacher a "dumbo." He refused to go to his designated "safe" place, so he was allowed to go home with his parents at about 9:15 a.m. for the remainder of the day. No formal disciplinary action was taken.

    3. On November 26, 2002, the Student gently slapped another student, argued with a teacher, and later slapped that teacher. When he conferred with the special education teacher soon thereafter, he used an offensive epithet to describe teacher he had slapped. The District sent the Student home for safety reasons, but no formal disciplinary action was taken.

    4. On January 3, 2003, the Student exchanged inappropriate words with another student before school. No formal disciplinary action was taken.

    5. On January 8, 2003, the Student told a teacher "if you don't get out of here, I'm going to sue you." No formal disciplinary action was taken.

    6. On January 10, 2003, he refused to report to the office after being told to do so. The District imposed a "lunch detention" for this behavior.
30. In the second semester of the 2002-2003 school year, as required by the BIP, the Student's teachers issued the following discipline referrals or conduct reports for "serious disinhibited behavior" or for "storms":
    1. On February 4, 2003, the Student threw a racquet during gym, and then told the gym teacher to "shut up" and called the special education teacher a "dingbat" as she unsuccessfully attempted to convince him to go to his designated "safe" place. The District imposed an out-of-school suspension for one day.

    2. On February 6, 2003, the Student disobeyed the instructions of teachers to go to his gym class, and was twenty minutes late for that class. No formal disciplinary action was taken.

    3. On February 11, 2003, the Student shoved the choir teacher four to five times with his upper body and yelled at the teacher to get out of the way. The District imposed an out-of-school suspension for the remainder of that day and for the following day, February 12, 2003.

    4. On March 12, 2003, the Student persisted in arguing with the choir teacher and disobeyed her instructions to go to the office. He received two lunch detentions.

    5. On April 22, 2003, the Student argued with the gym teacher, disobeyed the teacher's instruction to go in the hallway to cool down, and called the teacher a "loser" and tossed away a basketball. He then said to the special education teacher that the gym teacher "is a pig and only thinks of himself." The District suspended the Student for the remainder of the school day.

    6. On April 25, 2003, the Student was disrespectful and rude to other students and to his social studies teacher. The Student was sent to the office at 2:00 p.m. and remained there the remainder of the school day.
31. During the academic year 2002-2003, the District followed the provisions of the BIP by documenting the "serious disinhibited behavior" or "storms" with written reports. The out of school suspensions imposed for behaviors displayed on February 4, 2003, February 11, 2003, and April 22, 2003, comported with the provisions of the BIP.

32. The Student received frequent instruction respecting appropriate social skills throughout the 2002-2003 primarily through Student-teacher consultations as "teachable moments" arose to address unwanted behaviors. The District also employed a behavioral "points system," through which the Student could earn rewards for positive behaviors, but only during the Student's physical education class. The Student's core subject teachers regularly provided positive reinforcement when he behaved according to the short-term objectives that related to the several IEP goals. The District continued to assent to the Parents' wishes that the Student not receive formal social skills training outside the regular education environment, by either a special education teacher or school counselor.

33. The Student sustained his high level of academic performance during the school year, maintaining B+ to A level work in all of his core classes. He was on the Honor Roll for the three quarters that he completed for the academic year 2002-2003.
    IEP Meeting of January 8, 2003 (and Related Matters)

34. An IEP meeting was held on January 8, 2003. The Parents discussed an assessment that they had arranged to be conducted in the fall of 2002 by Dr. Douglas Woods, who is a clinical psychologist with special expertise on Tourette syndrome. Dr. Woods prepared a written report dated November 30, 2002. The Parents did not share Dr. Woods' actual written report with the IEP team, though they described its contents to the team. About three weeks after the IEP team meeting, the Parents supplied the District with Dr. Woods' written report.

35. Dr. Woods conducted eight diagnostic assessments as follows: Yale Global Tic Severity Scale; Child Behavior Checklist; Connors Rating Scales-Revised; State-Trait Anxiety Inventory for Children; Assessment of Interpersonal Relations; Impact on Family Scale; Social Skills Rating Scale; and Neurological Test Battery. Dr. Woods concluded that the Student had "a mild case" of Tourette syndrome, ADHD (predominantly hyperactive/impulsive type), and oppositional defiant disorder. Dr. Woods did not confirm the previous diagnoses of obsessive compulsive disorder (OCD), and included the observation that some of the Student's OCD-like behaviors "may be better viewed as behaviors consistent with Tourette's Syndrome rather than OCD."

36. Among Dr. Woods' recommendations were that a behavior management plan ("BMP") be established in both the home and school environments, stressing that the BMP should be "identical across both situations and consistently implemented." He recommended that any BMP "should make ample opportunity for learning through negative behavior," such as through a "points program," in which the Student could earn or lose "points" based on his behavior and receive tangible rewards based upon the number of points earned. Dr. Woods recommended also that the Parents "consider entering the Student into therapy for advanced social skills and anger management training."

37. A predominant topic of the IEP meeting of January 8, 2003 was improvement of the Student's social skills. Taking the cue from Dr. Woods' recommendation, the Parents sought to have the IEP team implement a "positive points program" in the Student's core subject classes. (The Student's special education teacher was using a similar reward program throughout the school year, but only during the Student's physical education class.) The areas in which the Student would be awarded points for appropriate behavior were: arriving to class on time; following teacher directions; working appropriately with other students; and using appropriate communication, tone and manners with students and staff. The IEP team agreed to implement such a program in the regular education classroom.

38. After the IEP team meeting, the District developed the details of a points program to be used in the regular education classroom and shared it with the Parents. The Parents objected to certain aspects of the District's proposed points program, most notably in the following respects:
    1. The District's program would have the teachers provide points in increments of 5 or 10 points at a time; the Parents wished that the number of points awarded always be 10, since this how the Parents had implemented a similar program in their home, and Dr. Woods had stressed consistency in the home and school strategies.

    2. The District's program would have had the teachers indicate to the Student, either verbally, by predetermined hand signal, or by a combination of the two, when he had just done a good job and was to be awarded points. The Parents wished that the teachers verbally recognize and articulate the precise positive behavior immediately after it occurred and announce the points awarded for the behaviors before returning to class instruction.
39. The District chose not to implement the positive points program in the regular education classes because of the lack of consensus with the Parents on the manner in which it would be implemented.

40. During the IEP meeting of January 8, 2003, the Parents requested an independent educational evaluation ("IEE") and an independent functional behavioral assessment ("FBA").

41. In response to the Parents' request for an IEE, the District filed a due process hearing request to establish that it was not required to provide an IEE at public expense because its evaluation of March 2001 was appropriate. This due process hearing request was referred to the Division of Hearings and Appeals for hearing. The Parents later filed the due process hearing request in the present matter and raised the matter of the District's refusal to provide an IEE at public expense. The Parties moved for the dismissal of the District's due process hearing request, agreeing that the matter of the IEE be adjudicated in this due process hearing. The District's due process hearing request was thereafter dismissed without prejudice.

42. In response to the Parent's request that the District conduct an "independent" FBA, the District sought to determine whether it was obligated to hire a person from outside the District to conduct the FBA as the Parents asserted. Upon investigation, the District concluded that it was not so obliged, and informed the Parents on January 29, 2003 that it was denying their request to conduct an "independent" FBA. The District undertook to conduct and prepare an FBA using its own staff.

43. A qualified District staff member gathered data and information for the FBA in March 2003. The staff member followed generally accepted procedures in conducting and formulating the FBA.

44. The FBA was prepared in time for it to be considered by the IEP team at the next meeting to formulate the Student's IEP for the year 2003-2004. This meeting was originally scheduled for May 7, 2003. In the weeks before May 7, 2003, the District had prepared a draft of the 2003-2004 IEP, which the Parents had reviewed.

45. By letter dated April 24, 2003, the Parents informed the District that they intended to enroll the Student in a private school at public expense effective May 5, 2003, because of the claimed failure of the District to provide an appropriate education. The Parents also asserted that the draft IEP and placement for the 2003-2004 school year was not adequate to provide the Student an appropriate education.

46. The Student last attended classes at [Unnamed] Middle School on April 25, 2003. His Parents enrolled him at a private school known as the Kennan Academy, located in the Menasha area.

47. The Student's 2002-2003 IEP and placement were reasonably calculated to provide a meaningful educational benefit, both academically and behaviorally, to the Student.

48. The District provided special education and related services to the Student in accordance with his 2002-2003 IEP.

49. The District made a good faith effort to assist the Student in achieving the goals and short-term objectives specified by his 2002-2003 IEP.

50. The Student received meaningful educational benefit, both academic and behavioral, under the 2002-2003 IEP and placement.
    IEP for 2003-2004

51. At the Parents' request, the IEP team did not meet on May 7, 2003 as scheduled because the Parents had a conflict. The District rescheduled the IEP team meeting for May 15, 2003. By letter dated May 12, 2003, the Parents informed the District that they could not attend the meeting because of scheduling conflicts. The District went forward with the meeting scheduled for May 15, 2003 because the school year would soon be over and the existing IEP would soon lapse. The IEP team approved an IEP for the 2003-2004 school year with placement at [Unnamed] Middle School. The Parents were not present for this IEP meeting and thus did not participate in the finalization and approval of the IEP and placement.

52. Two of the four annual goals in the 2003-2004 IEP were: (a) increase "ability to interpret a situation and respond appropriately in 70% of situations;" and (b) increase "ability to respond appropriately when in competitive situations, 60% of interactions." The IEP identified an aggregate of eleven short-term objectives towards achieving these two goals. Employment of common social skills constituted a substantial component of these two goals and their corresponding short-term objectives. The staff member who conducted the FBA participated in the IEP team meeting, though she was not a designated member of the team, and contributed in the discussions regarding these goals.

53. The two other annual goals set forth in the IEP were (a) "decrease the number of verbal interruptions in class to no more than 2 per class," and (b) "increase ability to follow directions given by authority figures to 75%."

54. The 2003-2004 IEP specified delivery of special education in the special education room for 45 minutes each day - 30 minutes on "direct instruction in appropriate behavioral options," and two sessions each day totaling 15 minutes for "monitoring behavioral progress."

55. The 2003-2004 IEP included 12 supplementary aids and services, most of which had also been specified in the preceding IEP, such as "teachers will ignore minor behaviors that are not a serious disruption," and allowing the Student to go to a "safe/calming area to gain control/composure."

56. The 2003-2004 IEP incorporated the FBA done earlier in the year and included a BIP. The "prevention plan" in the BIP focused on compliance with the goals and short-term objectives in the IEP and the direct behavioral instruction that was to be provided as special education. The BIP restated the essence of the intervention strategies of the prior IEP, to include employing redirection and de-escalation techniques. The IEP provided that in January 2004 a "positive points" system would be implemented "to reinforce skills/strategies taught during direct instruction."

57. The 2003-2004 IEP and placement were reasonably calculated to provide meaningful educational benefit, both academically and behaviorally, to the Student.
    Evaluation by Ms. Ann Heinrich

58. The Parents arranged for the Student's "social communication skills" to be assessed by Ms. Ann Heinrich, who is an educator and a speech and language pathologist. Heinrich evaluated the Student on four days -- April 9, 29 & 30 and May 1, 2003 -- and completed a report of her assessment on or before May 13, 2003. Heinrich concluded in her report that the Student "exhibits significant deficits in the area of social communication, or pragmatics, that need to be addressed in a carefully crafted manner by adults in home and school settings." She stated "These deficits make it difficult for him to be accepted by peers, maintain friendships, and avoid being suspended from school." Among Heinrich's recommendations included "pull-out therapy" or social skills training and a small classroom that would allow for greater individualized attention. Heinrich opined further:

    [I]t would seem highly unlikely that [the Student] is going to respond favorably in a large classroom where more traditional behavior management techniques are commonly used, teacher attention is more divided due to the number of students in the classroom, or where guidance counselors are the primary individuals to teach 'social skills' in isolated contexts. That is not to say that these techniques or specialists are not effective; rather, they just may not be appropriate for [the Student] at this point in time, as indicated by the behaviors he has demonstrated this year in such settings. A small classroom/student-to-teacher ratio would appear to be the most appropriate and efficient way to proceed, as would a cooperative approach by all adults … who work with [the Student].

    The Parents received Heinrich's final written assessment on May 13, 2003, and had received a draft of her written assessment sometime before then. The Parents did not supply a copy of either the draft or the final version to the District for the IEP team to consider in the IEP team meeting of May 15, 2003, where the IEP and placement for the year 2003-2004 were finalized and approved.

59. The cost of Heinrich's assessment to the Parents was $1,448.00. This cost was reasonable.
    Private School

60. In the academic year 2002-2003, seven students were enrolled in Kennan Academy. The operators of Kennan Academy focus on the education of children with learning disabilities, and generally will enroll children with behavioral problems only if those problems are secondary to the learning disability. Although the Student did not meet this profile, the Kennan Academy accepted the Student for enrollment following a "trial period" in May 2003. Ann Heinrich, the speech language pathologist who conducted the IEE in April, is an owner of the Kennan Academy and is one of three instructors at the school. Tuition for the Student at Kennan Academy for the 2003-2004 academic year is $10,500.00.

61. The Student received an appropriate education at Kennan School at the close of the school year in 2002-2003. The educational program at the Kennan Academy that was planned for the school year 2003-2004 is likewise appropriate.

The Parents engaged Ann Heinrich to prepare her "Assessment of Social Communication Skills" after the District had refused to provide for a publicly funded IEE, as the Parents had requested on January 8, 2003. The Parents paid Heinrich $1,448.00 for the assessment and seek reimbursement of this sum.

A parent of a child with a disability who has previously received special education and related services from a public school district may unilaterally enroll the child in a private school and may be reimbursed for the expenses of the private school if (1) the school district has not made a free appropriate public education available to the child in a timely manner prior to the private school enrollment, and (2) the private placement is appropriate. 20 U.S.C. § 1412(a)(10)(c); 34 C.F.R. § 300.403(c); Wis. Stat. § 115.791.

1. As of January 2003, the District's March 2001 evaluation of Student's pragmatic language skills no longer appropriately assessed the nature and extent of the Student's special education needs and thus was no longer appropriate, thus entitling the Parents to reimbursement of $1,448 for their cost for the independent educational evaluation. 34 C.F.R. § 300.502(b).

2. The District made a free appropriate public education available to the Student in a timely manner prior to the Student being enrolled in private school, so the Parents are not entitled to reimbursement for the expenses of the private school placement. 20 U.S.C. § 1412(a)(10)(c); 34 C.F.R. § 300.403(c); Wis. Stat. § 115.791.

1. The District shall reimburse the Parents $1,448 for the independent educational evaluation.
2. The request for reimbursement of the private school expenses is denied

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. 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 of Hearings and Appeals will prepare and file the record with the court only upon receipt of a copy of the appeal.