Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Glendale-River Hills School District

DECISION 
Case No.: LEA-03-031

The Parties to this proceeding are:

[Student], by Attorney Ronald Stadler
Stadler & Centofanti, LLC
1025 Glen Oaks Lane
Mequon, WI 53092

Glendale-River Hills School District, by

Attorney Daniel J. Chanen
Davis & Kuelthau
111 East Kilbourn Avenue
Suite 1400
Milwaukee, WI 53202-6677
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] on August 20, 2003 and referred the matter to this division for hearing. The due process hearing was held on October 1, 2003 and the record closed on October 2, 2003. The decision is due by October 31, 2003.

ISSUES

  1. Whether the IEP for the 2002/2003 school year was appropriate.
  2. Whether the District had an obligation to and failed to perform an appropriate Functional Behavioral Assessment for the 2002/2003 school year.
  3. Whether the District failed to provide appropriate related services during the 2002/2003 school year.
  4. Whether the IEP for the 2003/2004 school year is appropriate.
  5. Whether the District had an obligation to and failed to perform an appropriate Functional Behavioral Assessment for the 2003/2004 school year.
  6. Whether the District's proposed placement at Turning Point Elementary School continues to be an appropriate placement for the 2003/2004 school year.
  7. Whether the District is obligated to provide related services during the 2003/2004 school year.
FINDINGS OF FACT

  1. [Student] (the Student) is and was during all relevant times, a student with a disability within the meaning of the Individuals with Disabilities Education Act and Wisconsin Statutes Chapter 115.

  2. It is undisputed that the Student's grandparents are his legal guardians.

  3. It is undisputed that the Student is Emotionally-Behaviorally Disabled (EBD)and has been diagnosed with Attention Deficit - Hyper Activity Disorder (ADHD).

  4. During the 2002/2003 academic year, the Student was in fourth grade at Parkway Elementary School in the Glendale-River Hills School District (the District).

  5. On May 21, 2002, the IEP team created an IEP effective until October 16, 2002. (Exhibit 15)

  6. Through out the 2002/2003 academic year, the Student had a paraprofessional assigned to assist him through out the day. (Exhibits 5, 11, 15, 18 and 19).

  7. The paraprofessional assigned to the Student changed throughout the year. His paraprofessionals for the 2002/2003 academic year were Carol Shelton, Tom Hines, Sandy Lee, Laura Wesley, Noreen Winn, and Laurie Dierberger. (Tr. 79:18-25, 80:1-9, 92:20-24)

  8. On September 12, 2002, the student had a tantrum in the special education room and knocked over a room divider that fell on top of other students. This conduct resulted in a suspension. (Exhibit 39, Tr. 22: 1-19)

  9. On September 23, 2002, the District convened an IEP meeting to discuss the Student's conduct and created a new IEP for the Student. (Exhibit 11)

  10. On September 27, 2002, the Student squeezed a classmate's hand and refused to let go. (Exhibit 69)

  11. On September 30, 2002, the Student charged a classmate in gym class, knocking the classmate down. The Student picked up a stick and started swinging it around. When confronted by his gym teacher, Kathy Timmerman, the Student pushed her. A custodian attempted to intervene on Ms. Timmerman's behalf, but the Student responded by showing disrespect to the custodian. (Exhibit 38, Tr. 147:9-25; 148:1-25; 149:1-11)

  12. On October 2, 2002, the IEP team met again to discuss the Student's conduct and a third IEP was created. The Student's behavior plan was changed to allow the Student to leave classes earlier to alleviate the stress of transitions. (Exhibit 9; Tr. 376:6-11).

  13. In October 2002, Shirley Robinson, a family friend began assisting the Student with the paraprofessional. She acted as the Student's "mentor" until June 2003. (Tr: 428:15-18; 429:11-13)

  14. On October 21, 2002, the Student had a tantrum in gym class. He pushed a teacher and broke a lamp. This conduct resulted in a suspension. (Exhibit 36; Tr. 35:14-21)

  15. On November 20, 2002, the Student hit the same classmate involved in the September 30th incident. The Student hit the classmate with a mitten clip, then hit the student by flicking his fingers. This conduct resulted in a suspension. (Exhibit 35; Tr. 40:6-25; Tr.41:1-5).

  16. In December 12, 2002, the Student was asked to leave a Social Studies class because he was stomping on the test. (Exhibit 69)

  17. On January 7, 2003, the Student ripped homework and had to be removed from math class. (Exhibit 69)

  18. On January 8, 2003, the Student was twice removed from math class due to behavior issues. (Exhibit 69)

  19. On January 13, 2003, the Student refused to do an assignment. He ripped papers and refused to go to the Quiet Room when asked. (Exhibit 69)

  20. On February 25, 2003, the Student had a tantrum. He showed disrespect to his paraprofessional, he showed disrespect to Ms. Robinson, threw a chair, broke chalk, and broke a globe. (Tr. 42:13-25; 43:1-25)

  21. On March 10, 2003, the Student, during gym class pushed down a classmate while the classmate was performing a gymnastics stunt. This was the same classmate involved in the September 30th and November 20th incidents. When confronted, the Student initially lied about his involvement, then later stated that the classmate "had it coming." (Exhibit 69; Tr. 46:14-21; 47:1-25; 48:1-7; 153:2-24; 154:2-10)

  22. On March 11, 2003, the Student tripped another child in the hallway, after getting off the bus. The Student had a tantrum in the morning and required assistance to be moved to the Quiet Room. The Student refused to work on assignments, ripped up papers, and broke a ruler. (Exhibit 69; Tr. 48:22-25; 49:1-14)

  23. On March 13, 2003, in the morning, the Student ran outside the school building to the playground and refused to come in. When the Student did eventually come back into the building, he turned off all the lights in the hallway and knocked over recycling bins. When the Student was moved to the community room, he threw chairs, wrote all over the chalkboard, and tried to climb out a window. Later in the day the Student dumped his lunch tray in the fish tank. (Exhibit 69, entry by Mr. "T"; Tr. 50:7-22)

  24. On March 19, 2003, the District removed the Student from the regular classroom and required the Student to do all assignments, except a group project, in the special education classroom with Mr. Minchk or Mr. Bojar. (Exhibit 90; Tr. 50:23-25; Tr. 51:1-22; 377:3-10) The Student did not have lunch or recess in a large group with other Students. (Tr. 377: 5-25: 378:1-14)

  25. On March 21, 2003, the IEP team met again to discuss the Student's conduct and his placement. The team created another IEP that placed the Student at Turning Point Elementary School, an alternative school for emotionally disabled students. However, per an agreement with the Student's guardians reached after the Spring break, the Student was permitted to finish the school year at Parkway Elementary School. (Exhibit 5, Tr. 59:10-25)

  26. During the week of March 18, 2003 to March 26, 2003 the Student was involved in a number of incidents. The entry in the Student's daily log indicates that during the week, the Student was throwing food, pouring milk over his head in one instance. He pulled on a teacher's clothing in order to knock the teacher off balance. The Student was kicking, pushing, and biting staff. The Student ran, several times, to his old classroom, seeking out a particular student. When placed in Dr. Rodriguez's room, the Student dumped water all over the floor. The Student threw a chair and desk while Principal Deklotz spoke to him. (Exhibit 69)

  27. On March 31, 2003, the Student punched a hole in his homework assignment. (Id.)

  28. On April 7, 2003, the Student punched a classmate in the eye after being told to return a ball that the Student took from the classmate. (Exhibit 34; Tr. 56:5-23)

  29. On April 10, 2003, the Student took out toys without permission and broke them.

  30. On April 11, 2003, the Student tore up his math assignments and "head-butted" Mr. Minchk in the chest. (Exhibit 85; Exhibit 86; Tr. 57:15-25; 58:1-25; 59:1-4)

  31. From May 5, 2003 to the end of the 2002/2003 academic year, the District removed the Student from Mr. Minchk's classroom at the guardian's request and placed the student in a regular education room with Ms. Harrison for the entire day. Two adults were assigned to the Student at all times, a paraprofessional and either Ms. Robinson or the Student's grandmother. (Exhibit 70; Tr. 59:23-25: 60:1-15)

  32. On May 6, 2003, the Student ran off the bus and away from Penny Hansen, a staff member. He refused to follow directions and did not line up with other classmates. Principal DeKlotz, the Student's grandmother and Ms. Herzog moved the Student to the Library, but he continued to act out. They then moved him to the Time Out room. The Student did not calm down and Principal DeKlotz told the Student's grandmother that the Student would need to go home. (Exhibit 70)

  33. On May 15, 2003, the Student kicked a classmate in the head during a game of Keep Away, which only permits the use of hands. (Exhibit 70)

  34. On May 22, 2003, the Student engaged in a physical altercation on the playground with another boy over basketball. (Exhibit 70)

  35. On May 24, 2003, the Student engaged in loud, disruptive behavior during the Spring Extravaganza and had to be removed from his assigned seating area. It took two or three adults to calm the Student. When asked about his grandmother's whereabouts, the Student lied. (Exhibit 70; Tr, 65:8-25; 66:1-25; 67:1-11; 211:19-25; 212:1-22)

  36. On May 28, 2003, the Student dumped over a tray of beads and glitter during art class.

  37. On May 30, 2003, the Student, during gym class refused to stop throwing balls as directed by his teacher, Ms. Timmerman. While the Student's grandmother was present, the Student took a classmate's magazine without permission and tore it in half. (Exhibit 70)

  38. June 2, 2003, at the end of the day, the Student crumpled his math homework and put it in his mouth. The paraprofessional removed the Student from class and walked the hall with the Student until the bus came. (Exhibit 70)

  39. On June 6, 2003, during lunch, the Student threw a milk carton, hitting a classmate in the head. (Exhibit 70)

  40. On June 9, 2003, the Student became disruptive during lunch. He began pounding his fists on the lunch table. (Exhibit 70)

  41. On June 10, 2003, the Student's grandparents instructed him to wear his dress shoes until the school assembly was over. However, during the assembly, the Student spoke out of turn and destroyed his shoes. (Exhibit 70; Tr:210: 2-25; 211:1-18)

  42. On July 11, 2003, the IEP team met to create an IEP for the 2003/2004 academic year. This IEP listed Turning Point Elementary School as the Student's placement. (Exhibit 1)

  43. At the time of this Due Process Hearing, during the fall of the 2003/2004 academic year, the Student was in the fifth grade at Glenn Hills Middle School in the Gendale-River Hills School District, pursuant to "Stay-Put" provisions. (Tr. 394:1-3)

  44. Early in September 2003, the Student came to school upset. He would not sit down and was unable to discuss what was bothering him, even with two adults sitting with him. The Student repeatedly got out of his seat and emptied his nostrils into a wastebasket. The Student's behavior escalated and when the his special education teacher, Mary Picard, asked for assistance, the office called the Student's grandmother/guardian who came to school with the Student's medication. However, the Student refused to take his medication, and the Student's grandmother took the Student home. (Tr. 397:5-21)

  45. On October 1, 2003, the Student was suspended because he threatened to hit a child and throw the child down the stairs. The Student refused to calm down, taking things from his paraprofessional and ripping them. The Student began throwing things and was subsequently escorted to the office. (Tr. 395:25, 396:1-22)
DISCUSSION

Wisconsin Statutes Section 115.77(1m)(b) and the Individuals with Disabilities Education Act (IEDA)(sic) requires school districts to provide a free and appropriate public education (FAPE) to children with disabilities. (See also CFR Sec. 300.121) Wis. Stats. Sec. 115.76(7) and IDEA define FAPE as, "special education and related services that are provided at public expense and under public supervision and directions…and are provided in conformity with an individualized education program (IEP)." (See also CFR Sec. 300.13.)

I. The IEP for the 2002/2003 academic year did not provide a benefit to the Student.

An IEP must be reasonably calculated to provide educational benefit. (Id.) The IEPs developed for the 2002/2003 school year were not reasonably calculated to provide benefit to the Student for two reasons. First, they did not plan for or include preparation for the student's transition to middle school in the 2003/2004 academic year. Second, the student's behavior did not show marked improvement over the course of the year.

It is undisputed that the Student's need for special education was and is behavior based and not academic or cognitively based. It is undisputed between the parties that the Student has the most difficulty controlling his behavior during transitions between classes and in unstructured settings such as gym class and recess. The District was aware that unless transferred, the Student would be transitioning between Parkway Elementary School and Glen Hills Middle School from the 2002/2003 academic year to the 2003/2004 academic year. According to Ms. Patricia DeKlotz, the former principal at Parkway Elementary School:

Middle schools by nature are designed to increase transitions for students in an effort to build independence as students go from an elementary self-contained classroom to a middle school with more transition but working with the same block of kids to a high school where there's lots of transition, lots of kids…the nature of the organizational structure of Glen Hills is to increase transitions, to have more teachers interacting [with the Student] and more movement between classes that's unregulated (Tr. 78:4-21).

Chris Minchk, the Student's special education teacher during the 2002/2003 academic year, testified that he has previously worked on planning for such a transition from elementary to middle school for other students during the last school year. (Tr. 358:21-25; 359:1-5) According to Mr. Minchk, such planning might occur earlier in the year, if an IEP meeting took place, but most would happen from January on. (Tr. 370:17-25; 371:1-9) However, none of the Student's five IEPs for the 2002/2003 school year addressed the need to prepare [Student] for this transition. (See Exhibits 5, 11, 15, 18 and 19).

Despite the changes made to the Student's class schedule and the minor changes to the Student's Behavior Modification Plan, the Student's behavior did not change or improve in any substantial way over the course of the year. (Exhibit 69, Exhibit 70, Tr. 381:19-25; 382:1-11) Through out the year, the Student continued to display violent conduct towards property, adults and students. (Id.) Had the IEP been reasonably calculated to provide a benefit to the Student, some meaningful improvement in the Student's behavior should have been observed. It was not. Indeed, during the last 30 days of class, Principal Patricia Deklotz noted 13 incidents involving the Student. (Exhibit 70; Tr. 60:18-25; 61: 1-13)

II. The District failed to perform an appropriate Functional Behavioral Assessment for the 2002/2003 school year.

It is undisputed that the District had an obligation to perform an adequate Functional Behavioral Assessment (FBA). The parties disagree over whether the District adequately performed an FBA. The District contends that it did so.

Mr. Minchk performed the FBA. (Tr. 94:1-2, 339:8-11) It appears that changes to the Student's Behavior Management Analysis Plan (B-Map) were on going through out the school year. (Tr. 375:1-9). According to Mr. Minchk, in conducting an FBA, he relied on anecdotal information kept in a "Behavioral Log" by the Student's paraprofessional assistants to obtain information about the Student's behavior through out the day. (Tr. 383:24-25, 384:1-15) Mr. Minchk also indicated that he would go into the Student's classes and observe his behavior, as well as collect information from the Student's other teachers and the Student's guardians. (Tr. 244:18-25, 295:1-25, 339:12-25, 341:3-25. 342:1-23)

The purpose of an FBA is to identify the biological, social, affective, and environmental factors that cause, sustain, or end problem behavior. Susan Gorn, Answer Book on Special Education 11:8, 11:9 (1999) Neither federal regulations nor state law clearly define the techniques or strategies that are to be used in performing an FBA. (Id.) As such, the techniques employed by Mr. Minchk may be sufficient in certain circumstances. However, the Student exhibited severe behavior problems that resurfaced despite modest changes in the Behavior Modification Analysis Plan.

After the October IEP meeting, on October 21, 2002, the Student continued to engage in aggressive or dangerous behavior. Among other incidents, the Student pushed his gym teacher and broke a lamp. (Tr. 35:14-21) On November 20, 2003 the Student hit a classmate with a mitten clip then flicked his fingers in the classmate's face. (Tr. 40:6-25, 41:1-5). In February, the Student had tantrum, throwing a chair and breaking a globe. (Tr. 42:13-25, 43:1-25) In March, the Student pushed another classmate, and showed no remorse for his conduct. (Tr. 46-48) The next day the Student tripped a classmate and broke a ruler. (Exhibit 69, Tr. 48:22-25; 49:1-14).

After the March IEP meeting, there were still incidences of aggressive or dangerous conduct. Among other incidences, on April 7, 2003, the Student punched a classmate in the eye. (Tr. 56:5-23) Four days later, the Student "head-butted" his special education teacher on April 11, 2003. (Tr. 57:15-25, 58:1-25, 59:1-4) In May the Student walked into a Keep Away game, which allows only the use of hands, and kicked a classmate in the head. (Exhibit 70). On June 6, 2003, the Student threw a milk carton, hitting a classmate in the head. (Exhibit 70) During the beginning of the following school year, the Student was suspended for threatening to hit a classmate and throw him down the stairs. (Tr. 395:25, 396:1-22).

Given the persistence of the Student's aggressive behavior and the lack of any real response to the established Behavior Modification Plans, an FBA of greater depth, including input from the student's psychiatrist should have been employed to rule out biological or organic causes for the Student's misbehavior. In general, multiple sources of information and methods of data collection are desirable in order to obtain more accurate information about a child's behavior. (DPI Information Update 00.01, May 2000; DPI Discretionary Project 99-9912-19, Functional Behavior Assessment: A Study Guide 10-12).

The District argues that the Student was tested in the past, and that the IEP team's decision to decline further testing should be given deference. (See Exhibits 11, 28 & 29) However, the District provided no copies of those test results, nor did it provide copies of any other psychological/psychiatric information that the IEP team considered in performing the FBA. Further, the alleged testing was done four or more years ago. (Id.) It is not inconceivable that, and would not be surprising if, the Student's needs and psychological profile have changed over time. Yet, Mr. Minchk and the IEP team appear to have had very little information regarding the Student's psychiatric care and medication. (Tr. 382:19-25)

It is also desirable to consider the dimensions of a child's behavior, such as frequency, what the behavior is/looks like, the duration, the time that lapses between triggers and behavior, magnitude, and where/when the behavior occurs. (DPI Discretionary Project 99-9912-19, Functional Behavior Assessment: A Study Guide 10) There is little indication in the record that the IEP team examined these dimensions of the Student's behavior.

The DPI guidelines also indicated that the Student should be interviewed. (Id at 11) There is no indication in the record that the Student was interviewed as part of the FBA.

In summary, in this case, because the Student's behavior problems are so acute and involve physical violence towards students and staff, the District should have performed an FBA of greater depth. In addition to the personal observations made by Mr. Minchk, and the anecdotal records taken from paraprofessionals and other teachers, the District should have requested recent records from the Student's treating psychiatrist or in the absence of such records, had its school psychologist perform an evaluation of the Student.

III. The District was not obligated to provide appropriate related services during the 2002/2003 school year.

The District, who bears the burden of proof, provided the testimony of the Student's fourth and fifth grade special education teachers to show that the Student did not need related services in the area of occupational therapy, speech pathology, or assistive technology. Both Chris Minchk, the Student's fourth grade special education teacher, and Mary Picard, the Student's fifth grade special education teacher testified that the Student did not demonstrate a need for testing in the aforementioned areas. (Tr. 296:10-25, 297:1-4, 419:19-25, 420: 1-8) While these teachers are not occupational therapists, speech pathologists, or assistive technology experts, they have had the benefit of observing the Student over a period of time.

The Student's expert witness, Wendy Handrich, testified that the Student's records indicated a possible need for testing in these areas (469:20-25, 470-481). While Ms. Handrich might have credentials superior to Mr. Minchk or Ms. Picard, she has not had the benefit of observing the Student for an extended period of time. Ms. Handrich only reviewed the Student's special education records and she only met with the Student for, "a couple of hours." (Tr. 468:4-8, 503:10-17) As such, her opinion of the Student's needs is not entitled to greater weight than the observations of the Student's special education teachers. Further, Ms. Handrich, did not testify that the Student did, in fact, need related services. In short, there is no definitive evidence to support a conclusion that the Student required such services.

IV. The IEP for the 2003/2004 school year is not appropriate.

For the reasons discussed under section two, the FBA performed by the District was not appropriate. It did not find a way to improve the Student's behavior over the course of the academic year. A reasonable inference may be drawn that the Behavior Modification Analysis Plan, as well as, the goals and objectives incorporated into the IEP for the 2003/2004 academic year were predicated upon the faulty FBA. Until an adequate FBA is performed, the IEP team cannot properly determine what goals and objectives to incorporate in the Student's IEP, nor can it create a working behavior management plan.

V. The District failed to perform an adequate FBA for the 2003/2004 academic year.

As discussed above, the FBA was an ongoing process throughout the school year. The record is unclear, but a reasonable inference may be made that the District and IEP team used the aforementioned FBA in creating a Behavior Modification Analysis Plan for the 2003/2004 academic year. For the reasons discussed above, the District did not perform an adequate FBA to successfully determine what circumstances cause, prolong, deter, or end the student's problem behavior.

VI. Turning Point Elementary School continues to be an appropriate placement for the Student for the 2003/2004 academic year.

The "least restrictive environment" is defined by IDEA as requiring: To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are 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 U.S.C Sec. 1412(5)(A).

The guardians for the Student do not dispute the fact that the Student's behavior problems are severe and require the Student's removal from the regular education setting and placement in a full time special education setting. However, the Student's guardians ask that the student be placed in a completely self-contained setting at Glen Hills Middle School, where the Student would take all of his classes in the special education classroom, to minimize transitions between classes. Counsel for the Student argues that this environment would be less restrictive for the Student than a placement at Turning Point Elementary School.

A similar arrangement was attempted at Parkway Elementary School after March 22, 2003. The Student was removed from the regular education classroom and expected to do his assignments in a special education room. (Exhibit 90; Tr. 50:23-25; Tr. 51:1-22; 377:3-10). His schedule was changed so that he would have limited contact with other students. (Id.) During this time the Student continued to have two support people with him at all times, his paraprofessional and Ms. Robinson or his grandmother. However, the Student's behavior did not improve and he continued to exhibit aggressive behavior.

During the week of March 18, 2003 to March 26, 2003 the student was involved in a number of incidents. The entry in the Student's daily log indicates that during the week, the Student was throwing food, pouring milk over his head in one instance. He pulled on a teacher's clothing in order to knock the teacher off balance. The Student was kicking, pushing, and biting staff. The Student ran, several times, to his old classroom, seeking out a particular student. When placed in Dr. Rodriguez, the school psychologist's room, the Student dumped water all over the floor. The Student threw a chair and desk while Principal Deklotz spoke to him. (Exhibit 69, Note of "Mr. T") On March 31, 2003, the Student punched a hole in his homework assignment. (Id.) On April 7, 2003, the Student punched a classmate in the eye after being told to return a ball that the Student took from the classmate. (Exhibit 34; Tr. 56:5-23) On April 10, 2003, the Student took out toys without permission and broke them. (Exhibit 69) On April 11, 2003, the Student tore up his math assignments and "head-butted" Mr. Minchk in the chest. (Exhibit 85; Exhibit 86; Tr. 57:15-25; 58:1-25; 59:1-4)

Defense counsel argues that the self-contained arrangement at Parkway Elementary did not work because of the District's failure to perform an adequate FBA. This is certainly true, in part. However, regardless of what organic or environmental causes triggered the Student's violent behavior, the fact remains that his behavior problems are too severe to be addressed at Glen Hills Middle School. The Student's problem behaviors place other classmates at risk of harm, and the Glen Hills setting would increase the likelihood of the Student having major meltdowns.

The Student has acted out against other classmates by hitting them or pushing them. He has not been deterred from physically acting out against adults, even "head-butting" a teacher. The Student's tantrums, which also involve breaking items and throwing items as large as chairs, endanger the safety of his classmates. Further, the Student's size, which is larger than average, exacerbates the risk he poses to other students. Based upon his appearance at the second day of hearing, the Student is approximately five feet tall and over 100 lbs.

It is undisputed that the Student does not deal with transitions well. According to the testimony of Deb Cook Westfahl, the Special Education Coordinator of Student Services for the Glendale-River Hills School District, there are many transitions between classes at Glen Hills Middle School, even for children, like the Student, who are emotionally/behaviorally disabled. (Tr. 267:9-21) If the Student were placed in a completely self-contained program at Glen Hills Middle School, the Student would be the only emotionally-behaviorally disabled student in the program. (Tr. 411:15-25, 419:4-18) There is only one other student who is in a largely self-contained program, an autistic child who functions below grade level. (Id.) Other special education students at every grade level would be moving in and out of the special education room during each class period. (Tr. 274:22-25, 275:1-19, 422:7-17). The Student would have no consistent interaction with his peers. (Tr. 279:8-25, 280:1-6) Undoubtedly, under such circumstances, the Student would have difficulties with his classmates coming and going from the room, as well as the added distraction of children working on assignments or projects different from the Student's. To place the Student in such a setting would be irresponsible and set the Student up for failure.

Therese Kwiatkowski, a Special Education Coordinator for CESA 1, testified that she was the head of the steering committee for the creation of Turning Point Elementary School and facilitated its program design. (Tr. 227:11-25) The students served at Turning Point tend to be students that have exhausted school resources, many of whom, like the Student are emotionally-behaviorally disabled and have previously been placed in self-contained programs, but continued to exhibit inappropriate behavior. (Tr. 231:15-23) According to Ms. Kwiatkowski, there are eight students per teacher and per paraprofessional, in each classroom with an on-site leader that provides daily training in anger management and social skills. (Tr.234:10-18) The Students are eventually and gradually transitioned back into their home school. (Tr. 232:8-25, 233:1-10)

It is undisputed that the Student requires a great deal of attention, a small class size, and few transitions. The Student also requires integration into a middle school setting. (Tr. 78:4-21) All these needs can be met at Turning Point Elementary School, without having the distraction of classmates moving in and out of the Student's classroom through out the day. Moreover, the Student will have consistent interactions with peers at Turning Point, instead of being the only Student in the special education classroom, all day long. It should be noted that CESA 1 provides a lot of special education services to the Glendale-River Hills School District, in particular, by providing Title I services. (Tr. 228:18-25) As such, if the Student is later determined to have additional needs, CESA 1 can provide them to the Student at Turning Point Elementary School, and at Glen Hills Middle School, when the student is transitioned back into the middle school. In short, Turning Point is the most appropriate placement for the Student at this time.

VII. The District is not obligated to provide related services to the Student during the 2003/2004 academic year.

As discussed above, there is no definitive evidence that the Student requires related services for the 2003/2004 academic year. The Student's special education teachers did not notice any need by the Student for occupational therapy, speech therapy, or assistive technology. The Student's expert only testified that it might have been beneficial to test the Student for a need for related services. She did not testify that the Student, does indeed, require related services. (Tr.469:20-25, 470-481).

CONCLUSIONS OF LAW

  1. The District failed to provide FAPE because IEP for the 2002/2003 academic year was not reasonably calculated to provide educational benefit to the Student.
  2. The District failed to provide FAPE because it did not perform an adequate FBA for the 2002/2003 academic year.
  3. The District was not obligated to provide related services during the 2002/2003 academic year, in order to provide FAPE.
  4. The IEP for the 2003/2004 academic year is not reasonably calculated to provide benefit to the Student.
  5. The District failed to provide FAPE because it did not perform an adequate FBA for the 2003/2004 academic year.
  6. The placement at Turning Point Elementary School is the least restrictive and most appropriate placement for the Student.
  7. The District is not obligated to provide related services, at this time, in order to provide FAPE.
  8. The Student is the prevailing party with regard to issues 1, 2, 4 and 5.
  9. The District is the prevailing party with regard to issues 3, 6, and 7.
ORDER

IT IS HEREBY ORDERED that the District perform an adequate Functional Behavioral Assessment that includes input from the Student's psychiatrist or other professionals who have interviewed or evaluated the Student. The IEP team shall meet to discuss the results of that Functional Behavioral Assessment and change the Student's current IEP pursuant to the needs determined by the Functional Behavioral Assessment. It is further ordered that the Student be placed at Turning Point Elementary School for the 2003/2004 academic year and until such time as the IEP team deems that the Student can safely return to the Glen Hills Middle School.

Dated at Milwaukee, Wisconsin on October 30, 2003.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
819 North 6th Street, Room 92
Milwaukee, Wisconsin 53203-1685
Telephone: (414) 227-3841
FAX: (414) 227-3818
By:__________________________________
Mayumi M. Ishii
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.