Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

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] on July 11, 2003 and referred the matter to this division for hearing. The due process hearing was held on October 24, 2003 and the record closed on October 29, 2003. The decision is due by December 19, 2003.

1. Whether or not the Student's IEP teams were composed of all participants required by IDEA and Wisconsin Statutes;

2. Whether or not the District failed to properly implement the Student's 6th grade (2002-2003 school year) Individual Education Programs (IEPs) by:
   1. Failing to target every benchmark;
   2. Failing to use one-on-one aids as required in the IEPs;
   3. Failing to have the Student draft a daily schedule with the help of his aid as required by a benchmark contained in the Student's IEP;
   4. Failing to provide qualified teachers and aids to address the Student's needs;

3. Whether or not the District failed to provide the Student with a meaningful educational benefit by:
   1. Causing the Student to regress in his educational goals; and
   2. Failing to utilize an alternate method of teaching.

4. Whether or not the District failed to appropriately address the Student's behavioral needs by:
   1. Failing to properly address the Student's behavior prior to completing the Behavior Intervention Plan; and
   2. Failing to draft an appropriate Behavior Intervention Plan.

5. Whether or not placement at Pilgrim Park Middle School was appropriate:
   1. Whether or not the District was required to consider other schools for placement; and
   3. Whether or not the District is obligated to pay for the Student's private placement.

1. [Student] (the Student) is a child with a disability that attends the Elmbrook School District. He has been medically diagnosed with autism.

2. The Student attended the 2nd through 5th grade at Dixon Elementary School within the District. An Individualized Education Program (IEP) was prepared in February of 2002 that would be in effect from February of his 5th grade (2001-2002 school year) until February of his 6th grade (2002-2003 school year) at Pilgrim Park Middle School (PPMS).

3. The February 2002 IEP was attended by the Student's parents (Parents), a regular education teacher, his special education teacher, a physical education teacher, an occupational therapist, a speech therapist, a special education teacher from the middle school, the principal of the middle school and the Student's therapist from the Wisconsin Early Autism Project (Exhibit #10). A therapist from the Wisconsin Early Autism Project attended at the request of the Parents and at the District expense. All parties agreed to the completed IEP and there was no dispute in any of the testimony at the hearing that this IEP was reasonably calculated to enable the Student to receive educational benefits.

4. At the February 2002 IEP meeting, the transition to the 6th grade (2002-2003 school year) at Pilgrim Park Middle School (PPMS) was an important part of the meeting. Because of the Student's disability, there was a concern about possible regression because of the Student's difficulty with change and transition. PPMS was a bigger building, more movement during the day for the Student and more interaction with other teachers and students which could be a problem for the Student. Many things were done to make the transition to middle school easier for the Student. The Parents and the Student went to the middle school in May of 2002 to introduce him to the building and discuss his daily schedule. Also in May of 2002, his classroom teacher met with the Student at the elementary school and observed him for a period of time. Finally, the Student attended a summer session program called "adventures in PPMS" that consisted of 3 days in August to acquaint him with the school building and his schedule.

5. The Student was assigned a middle school teacher in May or June of 2002. This teacher was Jean Parulski who was a certified special education teacher for ages 3 through 21. She has worked with children with autism since 1977. She has completed Level A and B state training courses on autism and received other training in autism through various seminars and in service programs (TR 184-187). Upon learning of her assignment, she spent many hours observing the Student in the grade school setting and talked with his then current teacher about teaching methods for the Student.

6. The Student began the 2002-2003 school year in Ms. Parulski's class with an assigned one-on-one teaching assistant, Dawn Lazu. Ms. Lazu is a certified teaching assistant that had worked with autistic children in the past, though the other children's disability with autism had not been as severe. Ms. Lazu assisted the Student on a one-to-one basis under the direct supervision of Ms. Parulski.

7. The Student worked with a speech/language pathologist during his 6th grade on the speech and language goals contained in his IEPs. She had a master's degree in speech and language pathology and had attended 11 in service training sessions on autism (Tr. 74-78). In particular, she had attended the Level A and B state of Wisconsin training sessions on autism.

8. The Student displayed some problem behaviors early in the school year. One of the behaviors was when he would walk by a water fountain, get a drink, hold the water in his mouth and spit the water over the stair railing. This behavior was addressed by the District by making the Student clean up the water, by making the water fountain less accessible to the Student and by the use of social stories (Tr. 337 and Ex. 34). Social stories are a positive intervention approach to behavior by regularly reading a story of appropriate behavior to the Student. The spitting behavior stopped in early November of 2002.

9. Social stories and redirection were also used for the Student's behavior of lying on the floor and running (Ex. 34). Although this behavior did not stop, it did improve throughout the year.

10. The Parents had privately hired a consultant and therapist from the Autism Behavior Network (ABN). The consultant and therapist made observations of the Student in school on occasion. The District allowed the teachers to consult with the ABN personnel at the District expense because of their expertise and experience with autistic children. The teachers, teaching assistants and speech therapist did consult with the ABN personnel on occasion and sometimes utilized ABNs suggestions.

11. The Student's mother (the Mother) visited the Student's classroom in the fall of 2002. She did not like the Student's classroom setting because she found it to be too small with too many distractions and did not like the functional classroom setting. The Student was being taught academics in the classroom and some of the academics were taught in a functional, daily living skills setting. The Parents requested a more traditionally academic classroom since functional living skills were being taught at home.

12. At a meeting between the teachers and the Mother in October of 2002, the Mother expressed concern about some of the IEP goals and her dissatisfaction with the Student's current classroom setting. The District determined that the IEP team needed to meet to resolve these concerns. Because of scheduling problems, the IEP team did not meet until December 16, 2002. The team could not complete the IEP at that meeting and decided to wait until the annual IEP meeting in February 2003 to complete the IEP (Tr. 214).

13. Prior to the February 2003 IEP, the Student was transferred to a different classroom. His new teacher was Sharon Steuer. Ms. Steuer is a licensed special education teacher for Kindergarten through 12th grade with a bachelor's degree in special education and 13 years of teaching experience (Tr. 367-368). She has completed the Level A and B state of Wisconsin training on autism. Ms. Steuer was the Student's teacher for the remainder of his 6th grade.

14. The new annual IEP was completed on February 18, 2003. The meeting was attended by the Parents, the Student's regular education teacher, the Student's previous and new special education teacher, the Student's speech therapist, the Student's occupational therapist, the school psychologist the director of special education and the Parents. The District also paid for the services of consultants from the Autism Behavior Network (ABN) at the request of the Parents. The consultant was an expert in autism. The Parents and the consultants were active participants in the IEP and all parties agreed that the IEP was appropriate for the Student (Ex. 7).

15. An incident occurred on February 28, 2003 that resulted in punishment of a one-day suspension of the Student. The Student was lying down in the hallway and his aid told him to stand up. The Student got up, turned toward the aid and struck her on the shoulder (Tr. 343, Ex. 15). The Parents strongly disagreed with the out-of-school suspension because they believed that this punishment would negatively reinforce the hitting behavior.

16. The Student did not hit anyone at the school for the rest of the school year.

17. Following the hitting incident, the Parents requested a new teaching assistant for the Student. The District complied with the request by extending the hours of a part-time teaching assistant, Beth O'Neill. Ms. O'Neill is a licensed teaching assistant who assisted the Student on a one-to-one basis from 9:00 a.m. until 1:30 p.m. under the direct supervision of Ms. Steuer. The Student was assisted on a one-on-one basis by another aid prior to Ms. O'Neill's arrival and assisted by a therapist from ABN after she left for the day.

18. A second incident occurred on April 15, 2003 that also resulted in punishment of a one-day out of school suspension of the Student. The Student was sitting next to his teacher at a lunch table while the teacher was talking to another female student. While they were talking, the Student reached over to the female student and intentionally touched her breast (Exhibit 15). Again, the Parents strongly disagreed with the out-of-school suspension because it might negatively reinforce the bad behavior.

19. The Student did not inappropriately touch any other person at the school for the rest of the school year.

20. After the first behavior incident in February of 2003, the District made the decision to put together a Behavior Intervention Plan (BIP) to address the Student's behavior. A functional behavioral analysis was completed by the consultant from ABN at the District's expense (Ex. 46). The ABN consultant and District staff completed the BIP. The BIP was acceptable to all parties except for the last portion titled "severity clause". Essentially, this clause stated that the final decision on punishment for the Student would be left up to the District. The Parents strongly disagreed with this clause because they and the ABN consultant believed that out of school suspensions only reinforce negative behavior for the Student.

21. An IEP meeting was held on May 25, 2003 for the purpose of adding the BIP. The BIP was amended to state that the Parents would be consulted before any punishment was imposed by the District (Tr. 919 and Ex. 4).

22. The Student received educational benefit throughout his 6th grade at the District. Although not all of the benchmarks or short term objectives in the IEPs used to measure progress in the goals were targeted consistently by the District, each of the goals were targeted and progress was shown in each of the goals (Ex. 12 and 13).

23. The Student's IEPs contained 3 goals for speech and language (Ex. 10) and the goals were primarily targeted by the speech therapist. The Student made some progress in each of the Receptive, Expressive and Social Language Skills goals (Ex. 12). The quarterly progress reports and the credible testimony of the speech therapist proved this. The Speech therapist did not consistently target each of the benchmarks or short-term objectives in the IEP for the speech and language goals, however, most of the benchmarks were targeted for each of the goals and the Student made progress in these goals.

24. The Student also made progress in his goals of attending and interacting skills, reading and written language skills and math skills (Ex. 13). The Student's special education teachers and teaching assistants targeted these goals. Again, not each of the benchmarks or short-term objectives was targeted. However, the majority of the benchmarks were targeted and the Student made progress in his goals.

25. One of the benchmarks for the Student's attending and interacting goal was to prepare a daily schedule. This benchmark was done with the aid of his teaching assistant at the beginning of each day (Ex. 13 and Tr. 310).

26. The Student made progress in his final goal of gross motor skills (Ex. 13).

27. The Parents were kept informed of the Student's academic progress. The Student's teachers communicated with the Parents about the Student's activities, behavior and academic progress by the use of a Daily Communication Journal (Exhibit 45). Ms. Parulski also sent notes home, called the Parents or escorted the Student to the Parents' car to talk to them about the Student. Also, the Parents were given quarterly reports about the Student's progress in his IEP goals (Exhibit 12 and 13).

28. The Student did not return to the District for his 7th grade. He is not attending school at this time. He is in a home based program implemented by therapists from ABN. The therapists are not licensed teachers.

The District is required by the Individuals with Disabilities Education Act (IDEA) and Wisconsin statutes to provide a free and appropriate public education (FAPE) to the Student. 20 U.S.C. §1400 et seq and Wis. Stats. Chapter 115. The Supreme Court has held that this requirement is fulfilled by "providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203 (1982).

The District provided the Student with a free and appropriate public education as required under the Individuals with Disabilities Education Act by properly preparing and implementing the Student's Individual Education Programs.

IT IS HEREBY ORDERED that the due process hearing request be dismissed with prejudice.

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.