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] (Student) on October 03, 2003 and referred the matter to this division for hearing. The due process hearing was held on November 18, 2003 and the record closed on December 23, 2003. The decision is due by January 05, 2004.

1. Whether or not the Black River Falls School District (District) failed to provide a free and appropriate public education (FAPE) to the Student during the 2002-2003 school year because the goals and objectives contained in the Student's Individual Education Programs (IEPs) could not be measured and thereby inappropriately graduated the Student at the end of the 2002-2003 school year.

2. Whether or not the District failed to provide a free and appropriate public education (FAPE) to the Student by failing to provide appropriate transitional services during the 2002-2003 school year.

1. The Student is a 19-year-old man who attended school in the District from the fall of 1999 until May of 2003. The Student is a child with a disability. Until the spring of 2003, the Student's senior year, he was identified as having Emotional Behavioral Disorder because of Attention Deficit Hyperactivity Disorder and depression. In the spring of 2003, he was also identified as autistic. Specifically, the Student has been diagnosed with Asberger's Syndrome (Tr. 34).

2. Generally, The Student's academic problems are staying organized, paying attention in class, losing assignments, managing frustration and inappropriate social skills (Tr. 37, 45, 47, 60). From 1999 until December 2002, the Student's IEP goals were to be on task with assignments and to display appropriate behavior (Tr. 142-143). The goals were measured by teacher observations and anecdotal stories. The District admitted that these goals were not measured (Tr. 143-144).

3. For the first three and one-half years of high school (1999-2002), the Student participated in all regular education classes with increasing help from his caseworker in organizational and social skills (Tr. 51, 58). The Student had more difficulty in the 2001-2002 and 2002-2003 school years with keeping up with his class work (Tr. 158-159) and some of his classes from the 2001-2002 school year had to be retaken in the summer (Tr. 146).

4. In the third and fourth terms of his senior year (spring of 2003), the Student was taken out of some of the general education classes and the Student participated in two special education classes: Independent Living Skills and Study Skills (Tr. 75-77).

5. By the end of the Student's senior year (2002-2003), he had earned 29 credits in high school. 28 credits were required by the District in order to graduate from high school (Tr. 79-80).

6. By the end of the 2001-2002 school year, the Student's caseworker realized that the Student would not be successful in a four-year college without support (Tr. 79). Near the end of the 2001-2002 school year, the Department of Vocational Rehabilitation (DVR) was contacted to provide this support (Tr. 63). The DVR found that the Student was qualified to receive services, but not until after he turned 18 and was placed on a waiting list (Tr. 331, 341). The DVR also recommended that the University of Wisconsin, Stout Vocational Rehabilitation Institute (UW Stout) (Tr. 335) evaluate the Student and the District agreed to pay for the evaluation.

7. The Student was assessed by Jackson County Health and Human Services in the fall of 2002 and found to be in need of independent living skills such as paying bills, getting a job, buying food and preparing a meal (Tr. 263).

8. The December 2002 IEP contained new annual goals for the Student. These included daily living skills, learning how to appropriately advocate for himself and appropriate social skills (Ex. 52). Also, vocational training was added that included job shadowing.

9. All of the Student's IEPs state the transition goal of the Student to attend a four year college, however, there are no services for that goal other than the services offered to all regular education students (Tr. 165). The Student had the desire to be a writer and wanted to go to college (Tr. 63, 625). Neither the Parent nor the Student was ever informed by the District that college was an unrealistic goal (Tr. 462). The IEPs noted that in order for the Student to attend a University of Wisconsin college, he would need an English course and an elective course in order to be accepted (Tr. 121, Ex. 7 and 52). The Student has not completed the English course, the needed elective course or completed any college entrance examinations such as PSAT, SAT or ACT as of this due process hearing (Tr. 153-154).

10. During the spring of 2003, the Student was taken on 5 "job shadowing" trips in which he contacted various work places (e.g. Walmart, local newspaper) and traveled to the work places to observe for a short time. He also worked at the school library for a term and a local pet shop for two weeks as unpaid employment.

11. The District made the decision to graduate the Student because he would have more than the required credits at the end of the 2002-2003 school year. The notice to graduate was sent to the Student and Parents in April of 2003 and noted that the Student and Parent did not agree to the graduation (Ex. 3).

12. Additional IEP meetings were held in the spring of 2003 culminating in the final IEP held on May 9, 2003 (Ex. 7). The Parent did not attend this meeting as he had just changed jobs and could not attend an IEP during the day. The District attempted various dates to accommodate the Parent, but still scheduled the meeting during the day.

13. There was conflicting testimony about whether or not the Student's graduation was discussed in his IEP meetings (Tr. 171, 243), but nothing about graduation was noted in the May 2003 IEP except to state that the Student was "on track" (Ex. 7). There was nothing in the May 2003 IEP about the Student achieving or making progress on his IEP goals in order to graduate. The District witnesses testified that the purpose of the final IEP meeting was to complete an IEP that was acceptable to all parties (Tr. 116, 242). The Student graduated 3 weeks after the May 2003 IEP meeting.

14. Dr. Robert Cimera, a special education associate professor from University of Wisconsin Oshkosh and an expert in school to work transition reviewed the Student's December 2002 IEP and found the goals to be unmeasurable. He found no procedure written to measure the goals. He testified that anecdotal records by themselves were not adequate measurements because they could not be compared to anything (Tr. 575-576, 607-609). He recommended that the Student needed transitional services such as help with college admission examinations, help with completing courses necessary for college and employment opportunities in the community (Tr. 588-589).

15. The District measured the goals in the Student's IEP by anecdotal records and personal reports from the teachers (Tr. 149-150, Ex. 11, 53, 59). A handful of skills tracker forms were used to collect some objective data on the Student's progress in social skills in February and March of 2003 (Ex. 19), but were not noted anywhere to determine progress on his IEP goals. The only objective measurement found in the IEPs was the Student's grades.

16. The Student was evaluated at UW Stout in the spring of 2003 (Ex. 63, 64 and 65). The evaluation recommended work experiences and continued education until the age of 21 to continue working on social skills, job readiness and explore the possibility of the Student attending college (Ex. 64, p. 5).

17. The Department of Public Instruction (DPI) conducted an investigation in response to a complaint from the Parent and concluded on May 2, 2003 that the goals for the Student's IEPs were not all measurable and that corrective action was required (Ex. 66).

18. The Student is not attending any post high school education and is not employed as of this due process hearing.

The Individuals with Disabilities Education Act (IDEA) requires that children identified as having disabilities receive a free and appropriate public education (FAPE). 20 U.S.C. 1412(a)(1). To provide FAPE, school districts are required to develop IEPs that are specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction. Board of Educ. Of LaGrange Sch. Dist. No. 105 v. Illlinois Bd. of Educ., 184 F.3d 912 (7th Cir. 1999).

1. The Black River Falls School District failed to provide a free and appropriate public education to the Student in the 2002-2003 school in violation of the Individuals with Disabilities Education Act (20 U.S.C. 1400, et seq.) by failing to have measurable goals and objectives in the Student's Individual Education Programs.

2. The Black River Falls School District failed to provide a free and appropriate public education to the Student in the 2002-2003 school year in violation of the Individuals with Disabilities Education Act (20 U.S.C. 1400, et seq.) by failing to provide appropriate transition services to the Student.

1. The Black River Falls School District shall continue to provide the Student with special education services until he reaches the age of 21 as the Student has had no special education services since May of 2003 and will reach the age of 21 in October of 2005.

2. The Black River Falls School District shall provide the Student with appropriate transition services as determined by the Student's Individual Education Program team that shall include:
   1. Support for completion of required courses and entrance examination for the Student to apply to a four-year college program,
   2. (sic) Supported employment on a part-time basis in the community, and
   3. (sic) Support to learn daily living skills in the community

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.