Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Rice Lake School District

 
Case No.: LEA-03-023

The Parties to this proceeding are:

[Student], by Attorney Jeffrey Spitzer-Resnick
Wisconsin Coalition for Advocacy
16 N. Carroll St., Ste. 400
Madison, WI 53703

Rice Lake School District, by

Attorney Joanne H. Curry
Lathrop & Clark LLP
740 Regent Street, #400
P O Box 1507
Madison, WI 53701-1507
PROCEDURAL HISTORY

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) on behalf of [Student] (the "Student") and his parents, [Mother] (the "Parent") and [Father], against the Rice Lake School District (the "District") on June 6, 2003 and referred the matter to this division for hearing. The due process hearing was held on August 18, 19 and 20, 2003. The parties filed post-hearing briefs and the record closed on September 11, 2003. At the request of both parties, the deadline for issuance of a decision in this matter was extended to September 23, 2003.

ISSUES

  1. Has the District offered the Student placement in the least restrictive environment (LRE) for the 2003-2004 school year?

  2. Does the Student's individualized education plan (IEP) state with sufficient specificity the amount and frequency of instructional services, particularly with regard to ongoing autism training for staff that work with the Student?

  3. Does the District need to retain an independent consultant to train staff on how to implement the Student's IEP?
FINDINGS OF FACT

  1. The Student is a 12-year-old sixth-grader who resides and attends school in the Rice Lake School District.

  2. The Student is a child with a disability in need of special education as defined by state and federal law. The Student was diagnosed with autism at age three. (Tr. III:243) The District has identified the student as having autism as his primary disability, as well as a speech or language impairment. (Ex. 2)

  3. The District operates a special education program at Red Cedar Hall in [City] for students from seven school districts that contract with the District for the special education services. Red Cedar Hall is a segregated facility in that it does not provide education services to non-disabled students. It offers primarily a functional-based, prevocational-type curriculum that includes job training. (Tr. II:119-120, Ex. 13)

  4. From age three to six years, the Student attended the District's early childhood program, which was located in Red Cedar Hall. He was placed in regular education at Tainter Elementary School in the District for kindergarten. For first grade, the District placed the Student half-day at Red Cedar Hall and half-day at Tainter Elementary in regular education. From second through fifth grade, the Student attended Tainter Elementary. (Tr. III:243-245, 247)

  5. During the 2002-2003 school year when the Student was in fifth grade, he was placed in regular education classes at Tainter, except for one hour per day for language arts in a special education classroom and pull-out one-on-one instruction for math. He also received speech and language services and occupational therapy in a special education classroom once per week. (Tr. I:142-143 and 175-178, Ex. 7)

  6. The Student's reading skills are at about the mid-first grade to mid-second grade level. (Tr. I:44 and 60) His math skills are at approximately the first grade to mid-first grade level. (Tr. I:182 and 249) He performed at grade level (5th grade) on spelling tests during the last school year as long as the words were presented in the same order that he memorized them. (Tr. II:157-158) District staff have determined that the Student's expressive language and communication abilities are approximately at the 2 -2 ½ year old age level; at school he typically uses two to three word phrases to communicate. (Tr. I:38 and 267)

  7. As part of the April 2003 reevaluation, the District tested the Student's daily living skills and determined that, developmentally, he functions at the age of a 3.3 year old child in this area, which includes personal hygiene, dressing, eating and toileting. (Tr. I:45, Ex. 2) This result is inconsistent with information provided by his mother that he can perform these tasks independently at home. (Ex. 1, Tr. III:249)

  8. The Student can independently follow one-step directions. He displays some obsessive-compulsive behaviors and is easily distracted. He often needs reminders to stay on task, move about the school building, and manage his possessions. (Ex. 1)

  9. The Student has difficulty with motor skills such as handwriting but has good computer skills. (Ex. 1, Tr. I:329-330)

  10. The Student has a cheerful and compliant disposition. He responds to social interactions at school inconsistently, seldom initiates verbal exchanges, and inconsistently takes cues from peers. (Ex. 1) The Student engages in some behaviors that can be disruptive in class, such as making loud noises, getting up without permission, touching another student's hair, and echolalia, which is repeating words that he hears. (Tr. I:183-184)

  11. On April 30, 2003, the District held an IEP team meeting to determine the Student's continuing eligibility, develop an IEP and determine placement for the 2003-2004 school year. The Student's parents participated in the IEP team meeting. The IEP includes the following goals for the Student: increasing his motor skills to be independent in school; developing independent bathroom and personal care skills; developing independent prevocational/domestic skills; continue to develop his social skills; develop semi-independent safe mobility skills at school and in the community; increasing his independent level of skill on various academic benchmarks; increasing his skill in receptive/expressive language; and, increasing his physical fitness. (Ex. 1)

  12. The Student's 2003-3004 IEP offers placement at Red Cedar Hall from 8:30 a.m. to 12:30 p.m. daily and at the Rice Lake Middle School from 12:15 p.m. to 3:30 p.m. daily. (Ex. 1) The description of the special education program for both locations is exactly the same, as follows:

    [The Student] will receive an individually designed program for Autism serviced through the Cognitive Disabilities Program. There will be some flexibility to this as either school may have activities that they would like [the Student] to participate in such as field trips. (Ex. 1)

  13. In the "Determination of LRE (Least Restrictive Environment)" section of the IEP, it states that the Student "will receive special education 100% of the time" and "will participate with non-disabled peers whenever appropriate." (Ex. 1) In the LRE section requiring documentation of the reasons for concluding that, even with supplemental aids and services, the nature and severity of the child's disability is such that education with nondisabled peers cannot be satisfactorily achieved, the IEP states that:

    [The Student's] academic and self-help skills are significantly delayed. He requires a great deal of supervision, structure and one-to-one instruction to benefit from the general education. (Ex. 1)

  14. The "Instructional Services" section of the IEP states that "[o]n-going autism training will be offered for the staff that work with [the Student]. Options may include participation in CESA #11 Autism workshops, DPI sponsored trainings, or other workshops/trainings as deemed appropriate." The amount and frequency of the training is "[a]s opportunities arise and are deemed appropriate." (Ex. 1)

  15. The 2003-2004 school year schedule for the Student established by the District shows that he will eat lunch daily at Red Cedar Hall. (Ex. 10)

  16. Since 2001, the Student has been participating in an intensive home-based treatment program that was created by Dr. Nancy Schussler. The primary goals of the program relate to language acquisition and communication skills and generalization skills. (Ex. 4) He has successfully mastered some of the skills and continues to work on others unless they are suspended or not yet implemented. (Ex. 4, Tr. 205-206 and 241-244).

  17. The District has hired Therese Canfield to provide consultative services to special education staff in the District, including the Middle School and Red Cedar Hall, during the 2003-2004 school year. Ms. Canfield is a speech and language pathologist and communicative disorders specialist who has provided autism training as a consultant with CESA-#11. (Tr. II:137-139)

  18. At the hearing, the Parent stipulated that the District complied with the procedural requirements of the IDEA. (Tr. I:20-21)
DISCUSSION

2003-2004 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). The LRE provision of the IDEA requires that school districts mainstream children with disabilities to the "maximum extent appropriate." 20 USC § 1412(a)(5).

In a recent case involving the issue of LRE, the Seventh Circuit stated that "the FAPE determination is at the threshold of the placement inquiry." Beth B. v. Van Clay, 282 F.3d 493, 498 (7th Cir. 2002). As noted by the district court in the underlying decision, the sufficiency of a school district's proposed placement must be resolved "before even considering whether it is least restrictive." Beth B. v. Van Clay, 211 F.Supp.2d 1020, 1026 (N.D. Ill. 2001); aff'd 282 F.3d 493 (7th Cir. 2002).

A two-prong inquiry has been established for determining whether a child has received FAPE: (1) has the district complied with the procedures set forth in the IDEA; and (2) is the IEP developed through those procedures reasonably calculated to enable the child to receive educational benefits? See Rowley, 458 U.S. at 206-207. Here, the Parent has stipulated to the District's compliance with the IDEA's procedural requirements. Moreover, the appropriateness of the Student's IEP, generally, is not in question. The Parent has not challenged the appropriateness of the goals and objectives in the IEP and has not claimed that the IEP is not reasonably calculated to enable the Student to receive educational benefits. The FAPE mandate itself is not at issue here - the focus of the dispute is whether the District's decision to place the Student at Red Cedar Hall for half-days violates the LRE provision of the IDEA.

The LRE requirement in the IDEA provides that:

To the maximum extent appropriate, children with disabilities are to be educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 USC § 1412(a). See also 34 CFR § 300.550(b) and § 115.79(4), Wis. Stats.

The LRE provision shows Congress's strong preference for mainstreaming1 but "does not require, or even suggest, doing so when the regular classroom setting provides an unsatisfactory education." Beth B., 282 F.3d at 497. The Seventh Circuit declined to adopt a formal test to apply when deciding LRE cases, noting that each student's educational situation is unique. Id. at 499. However, in the underlying decision affirmed by the Seventh Circuit, the district court applied the LRE standard articulated by the Fifth Circuit and adopted by the Third and Eleventh Circuits. Beth B., 211 F.Supp.2d at 1028. In Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1046 (5th Cir. 1989), the court stated that:

First we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. If it cannot, . . . we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate.

1 See Bd. of Educ. of LaGrange School Dist. No. 105 v. Illinois State Bd. of Educ., 184 F.3d 912, 915 (7th Cir. 1999). In determining whether the Student would receive a satisfactory education in a regular classroom setting at the Middle School during the mornings, it is appropriate to consider factors such as what steps the District has taken to accommodate his disability, the educational and non-educational benefits he would receive there, his impact on the classroom environment, and any other factors relevant to this specific case. See Daniel R.R. at 1048-1050.

In the fifth grade regular education environment, the District made numerous accommodations for the Student. For example, the District provided assistive technology such as picture/word cues and an Alphasmart device, used visual, physical and verbal prompts, allowed the Student to leave the classroom to regroup, and utilized social stories as an instructional strategy. (See Ex. 7 and 17) The same types of accommodations are included in the Student's 2003-2004 IEP. (Ex. 1) The District also provides the Student with a one-on-one aide who provides assistance and direct instruction to the Student. The Student's teachers modified the fifth grade regular education curriculum for him, and the Middle School special education teachers testified that they would also be able to modify the sixth grade regular education curriculum for the Student. (Tr. II:78 and III:174-176)

In addition, the Student's fifth grade teachers participated in autism training, as did his aide. (Tr. I:30 and 167-168 and 323, II:324-325) Throughout the last school year, the Student's aide also consulted with Julie Stephens, the District's program support specialist who provides consultative services to staff regarding behavior issues for children with disabilities. (Tr. II:147-148) The Middle School special education teachers have also participated in autism training. (Tr. II:8-9, III:151) Finally, the District has hired a speech and language pathologist who is a communicative disorders specialist to provide consultative services to special education staff working with the Student and other students in the District for the 2003-2004 school year. (Tr. II:137-139) The supplementary aids and services described, as well as the program modifications and staff supports, constitute an adequate attempt by the District to accommodate the Student's individual needs.

The next inquiry in the LRE analysis is whether the Student will receive educational and non-academic benefits from the regular education setting at the Middle School during the morning. The Student's special education teachers for both the fifth and sixth grades, as well as the District's former Director of Pupil Services who was on the Student's IEP team, testified that they believe the Student would receive little or no educational benefit from placement in the regular education classroom at the Middle School. (Tr. I:89, 194 and 255; II:22 and 150; III:161) These educators who are familiar with the Student explained that the Student's functional level is much lower than sixth grade regular education students and even the other sixth grade special education students at the Middle School. (Tr. III:159, II:22-23)

The regular sixth grade curriculum is too complex and fast-paced for the Student to derive educational benefit from it, so a parallel curriculum would need to be developed. (Tr. III:53, 160, and 172) The special education teachers acknowledged to Student's counsel that the Student could work on certain objectives and/or goals in his IEP in the regular education classroom, such as "manage and transport multiple possessions from one place to another" while in technology education class or "making paper pencil corrections, keeping the words on a line" while in foreign language class. (Tr. II:108-110, III:174-175) As one of the teachers indicated, however, none of the goals and objectives in the Student's IEP are skills included in the sixth grade regular education curriculum. (Tr. III:171-172) The IDEA does not require changes so extensive that the curriculum becomes unrecognizable. Daniel R.R., 874 F.2d at 1048.

In regular education classes at the Middle School, the Student would be working on different skills than his nondisabled peers, would participate very little if at all in the class lectures and discussions, and would work one-on-one with his aide. Both the Parent and the Student's fifth grade teachers generally agree that the Student did not make much progress during the fifth grade in the regular education setting and that the rate of progress was slow. (Tr. I:184, II:175-176, III:247) The Parent suggests that the Student's lack of progress was the result of poorly or insufficiently trained staff. However, the record shows that the Student's teachers have received autism training and have experience with working with autistic children. In addition, the suggestions and ideas for educating the Student presented by the Parent's expert witnesses did differ greatly from the instructional strategies used by the District and not show that the District staff is insufficiently trained in autism. (Ex. 4 and 5, Tr. III:169)

It is also important to consider any non-academic benefits the Student might derive from the regular classroom setting at the Middle School in the morning. The Student's fifth grade special education teacher testified that the Student did not imitate peer models in the fifth grade regular education classroom. (Tr. I:208-209) The Student's speech and language teacher stated that she does not believe he would receive benefits in the area of speech and language from placement in the sixth grade regular education classroom. (Tr. I:278-279) Certainly the Student's opportunities to interact with nondisabled peers and model their speech and behavior will be limited in the sixth grade regular education classroom that largely utilizes a lecture format. Moreover, the Student will be following a parallel curriculum, rather than the lecture, and will be receiving one-on-one instruction from his aide during the class.

Finally, the effect of the Student's presence on the regular education environment must be considered. The Student was sometimes removed from the fifth grade regular education classroom for making loud noises or causing other minor disruptions. (Tr. I:183-184) Based on the evidence presented, these problems do not seem to be serious. In addition, it is unlikely that the Student's presence in the regular education classroom would require the teacher to take an undue amount of time away from the other students because the Student has a one-on-one aide to assist him.

After considering all of these factors, it is my determination that the Student would not receive a satisfactory education in the regular education classroom setting at the Middle School during the morning. The fact that the Student could work on certain IEP goals and objectives here and there in a regular education class that is substantively unrelated to those objectives does not constitute a satisfactory education. Placement of the Student for part of the school day in the special education classroom at Red Cedar Hall, as long as it meets the requirement that the Student is mainstreamed to the maximum extent appropriate, is an acceptable point along the "continuum of services." 20 USC § 1412(5).

The second part of the Daniel R.R. test is whether the District's proposal mainstreams the Student to the maximum extent appropriate. I do not believe that the District's placement offer passes this requirement. With regard to the Student's participation with non-disabled peers, his IEP states that he will receive 100% special education and "will participate with non-disabled peers whenever appropriate" in extracurricular and non-academic activities. (Ex. 1) In other words, this IEP does not specifically provide for any participation with non-disabled peers. This is unacceptable, and in fact, one of the Student's special education teachers testified that it is still important for the Student to have age-appropriate role models. (Tr. I:231)

The only mainstreaming that is evident from a review of the Student's IEP is the interaction he will have with non-disabled students in the hallway at the Middle School. One of the sixth grade special education teachers testified that the Student may have mainstreaming opportunities in a reading activity and in field trips, but this testimony was vague and no such opportunities are specified in his IEP. (Tr. II:163-164) Moreover, there was no reasonable explanation given by the District as to why the Student will not be having lunch at the Middle School with non-disabled peers. (Tr. II:71-72, III:176, Ex. 10) In addition, while I believe the evidence shows that the Student would not receive a satisfactory education in sixth grade regular education academic classes at the Middle School for half-days, I think it is possible that he could benefit from being integrated into non-academic classes such as music, art, field trips, lunch, and possibly even library and computers. Accordingly, the IEP team must reconvene to determine what mainstreaming opportunities are appropriate for the Student and to revise the IEP and placement offer to include such opportunities to the maximum extent appropriate.

The Amount and Frequency of Staff Training

The federal regulations implementing the IDEA provide that an IEP must include:

The projected date for the beginning of services and modifications described in paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of those services and modifications . . . 34 CFR § 300.347

Appendix A of the federal regulations further clarifies that "[t]he amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members." 34 CFR Part 300, Appendix A, Question 35.

The relevant portion of the Student's IEP simply states that the staff who work with the Student will receive ongoing autism training "[a]s opportunities arise and are deemed appropriate." (Ex. 1) Clearly, this language does not state with sufficient specificity the amount and frequency of autism training that will be offered to staff so that the level of commitment is clear the Parent and staff. In fact, the District's expert witness stated that the amount and frequency of staff training lacks sufficient detail. (Tr. II:278-279)

In deference to the expertise of the educators and the IEP team participants, I believe it is appropriate for this issue to be remanded back to the IEP team to determine the amount of ongoing staff training in autism that is appropriate and to revise the IEP so that it clearly states the amount and frequency of autism training that will be provided to staff who work with the Student.

Independent Consultant Services

The Parent raised the issue of whether the District needs to hire an outside consultant to train staff on how to implement the Student's IEP. At the hearing, the Parent indicated that she believes the staff need additional training and consultative services available to them regarding the Student. (Tr. III:259-260) However, the Parent testified that she thought it was possible that Theresa Canfield could provide such consultation. (Tr. III:276) Indeed, the District recently hired Theresa Canfield, a speech and language pathologist who is also a communicative disorders specialist, to provide consultative services to special education staff working with the Student and other students in the District for the 2003-2004 school year. (Tr. II:137-139)

In addition, the District has a program support specialist with 20 years of experience on staff that provides consultative services to staff regarding behavior issues for students with disabilities, including autistic behaviors. (Tr. II:294 and 297) District staff that work with the Student utilized her services during the past school year. (Tr. I:119, II:147-148 and 303) Moreover, the special education teacher at Red Cedar Hall is familiar with instructional methodology similar to that used in the Student's home-based treatment program and plans to utilize those techniques with the Student in her classroom. (Tr. III:130-131) The former Director of Pupil Services for the District testified that he believes the staff can implement the Student's IEP without outside consultation. (Tr. II:146-148)

There is no doubt that the Parent's expert Dr. Mark Sweet is an expert in the area of educating children with disabilities, including autistic students. (Ex. 23, Tr. III:185-188) However, the record as a whole does not demonstrate that there is a need for the District to hire an outside consultant to train staff on how to implement the Student's IEP.

CONCLUSIONS OF LAW

  1. The District's placement offer to the Student for the 2003-2004 school year does not offer the Student placement in the LRE because it fails to mainstream the Student to the maximum extent appropriate.

  2. The Student's IEP does not state with sufficient specificity the amount and frequency of autism training that will be offered to staff that work with the Student.

  3. The District does not need to retain an independent consultant to train staff on how to implement the Student's IEP.
ORDER

It is hereby ordered that the District reconvene the Student's IEP team to: (1) review and revise the Student's IEP and Placement Offer for the 2003-2004 school year so that it includes opportunities for the Student to participate with non-disabled peers to the maximum extent appropriate; and (2) to determine the amount of ongoing staff training in autism that is appropriate and to revise the IEP so that it clearly states the amount and frequency of autism training that will be provided to staff who work with the Student.

Dated at Madison, Wisconsin on September 23, 2003.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
5005 University Avenue, Suite 201
Madison, Wisconsin 53705-5400
Telephone: (608) 266-7709
FAX: (608) 264-9885
By:___________________________________
Sally M. Pederson
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 §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.