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Before The
The Parties to this proceeding are: [Address] Montello School District, by Davis & Kuelthau, S.C. P. O. Box 1068 Madison, WI 53701-1068 On October 3, 2003, the Department of Public Instruction received a request for a due process hearing filed by [Father] and [Mother] (the "Parents"), on behalf of [Student] (the "Student"), against the Montello School District (the "District") under chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA). The Department referred the matter to the Division of Hearings and Appeals. A prehearing telephone conference was held on October 13, 2003. On October 22, 2003, the District filed a motion to dismiss the Parent's claims. The Parents filed a brief, with attached exhibits, opposing the District's motion on October 31, 2003. The District filed a response brief in support of its motion to dismiss on November 10, 2003. On November 14, 2003, the undersigned issued a Ruling and Order dismissing one of the Parent's claims and amending the three remaining issues to address only those alleged denials of FAPE occurring since April 25, 2003. Prior to the start of the due process hearing, the Parties resolved two issues, so only one issue remained for hearing. The due process hearing was held on November 25, 2003. The parties submitted post-hearing briefs on December 11, 2003. Pursuant to the joint request of the parties, the decision deadline was extended to December 19, 2003.Since April 25, 2003, has the District denied the Student a free, appropriate public education (FAPE) by failing to provide a proper and updated plan of nursing care?
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. FAPE refers to special education and related services designed to meet the unique needs of a child with a disability that are sufficient to confer some educational benefit upon the child. Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982). School districts must provide related services if the services are needed to "enable a disabled child to remain in school during the day [and] provide the student with 'the meaningful access to education that Congress envisioned.'" Cedar Rapids Comm. Sch. Dist. v. Garret F., 526 U.S. 66, 73 (1999) (quoting Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891 (1984)). Related services are defined as "transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education." 34 CFR § 300.24(a). School health services are specifically included as one type of related service. Id. School health services are "services provided by a qualified school nurse or other qualified person." 34 CFR § 300.24(b)(12). The regulations define "qualified personnel" as "personnel who have met SEA-approved or SEA-recognized certification, licensing, registration, or other comparable requirements that apply to the area in which the individuals are providing special education or related services." 34 CFR § 300.23 (emphasis added). The District's school nurse, Ms. Sauld, is a registered nurse licensed by the State of Wisconsin. As such, she is qualified to provide school health services under the IDEA. The issue presented in this case is whether the District denied the Student a FAPE by failing to provide a proper and updated plan of nursing care. The IDEA does not specifically require that school districts develop or provide students with disabilities with plans of nursing care. Districts are required to provide related services, including school health services, to children with disabilities to enable them to remain in school and have meaningful access to education. There is no evidence in the record that the Student was prevented from remaining in school and having meaningful access to education because of a failure by the District to provide necessary school health services. Moreover, there is no evidence in the record that the Student was prevented from remaining in school and having meaningful access to education because of a failure by the District to provide a proper and updated plan of nursing care. Although the appropriateness of the plan of nursing care is the issue of record, the Parents primarily argued that Ms. Sauld failed to utilize proper assessment, evaluation, and problem-solving techniques as it related to her duties as a registered nurse. (Tr. 261-262) In particular, the Parent(s) alleged that Ms. Sauld did not assess and attempt to resolve the problem of the Student's fragile skin around the Mic-key button site. However, the Student's home health nurse stated that the Student has had problems with her skin opening and closing around the Mic-key button site for several years. (Tr. 132) The manner in which Ms. Sauld dealt with this issue is a matter of professional medical judgment, and the record shows that it did not deny the child a FAPE. The undersigned lacks the legal authority and qualifications to determine whether Ms. Sauld carried out her duties as a nurse appropriately with regard to the Student's fragile skin. The Parents also alleged that Ms. Sauld did not use A&D ointment and corn starch on the Student's rash and did not collaborate with or obtain information from the Northland Home Health nurses. (Tr. 126, 244, 252-254, 261-262) There is no evidence in the record that the Student was prevented from remaining in school and having meaningful access to education because Ms. Sauld did not use A&D ointment and corn starch and did not communicate with the home health nurses. By arguing that Ms. Sauld has not complied with the standards for registered nurses with regard to evaluation and assessment as it relates to the nursing care plan, the Parents are essentially challenging her professional competency. (Tr. 59, 261-262) As stated earlier, as a registered nurse licensed by the State of Wisconsin, Ms. Sauld is qualified to provide school health services under the IDEA. Chapter 441, Wis. Stats., and chapter N6, Wis. Admin. Code, govern the standards of practice for registered and licensed nurses in Wisconsin. The Board of Nursing and the Department of Regulation and Licensing are responsible for enforcing the nursing regulations and laws in Wisconsin. See §§ 440.03(1) and 441.07(1), Wis. Stats., and § N 6.05, Wis. Admin. Code. If the Parents wish to challenge Ms. Sauld's compliance with the standards of practice for registered nurses, they must file a complaint with the Board of Nursing. This forum does not have jurisdiction over that issue.The District has not denied the Student a free, appropriate public education since April 25, 2003, by failing to provide a proper and updated plan of nursing care. It is hereby ordered that the due process hearing request in this matter is dismissed with prejudice. Dated at Madison, Wisconsin on December 19, 2003.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 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. It is the responsibility of the appealing party to send a copy of the appeal to the Division of Hearings and Appeals. The record will be filed with the court within 30 days of the date the Division of Hearings and Appeals receives the appeal. |