Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Hamilton-Sussex School District

DECISION
Case No.: LEA-04-004

The Parties to this proceeding are:

[Student], by Attorney Patrick T. Berigan
Wisconsin Coalition for Advocacy
2040 West Wisconsin Avenue, Suite 678
Milwaukee, WI 53233

[City] School District, by

Attorney Jeffrey Schmeckpeper
Kasdorf, Lewis & Swietlik
One Park Plaza, Suite 500
11270 West Park Place
Milwaukee, WI 53224

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") on February 20, 2004 and referred the matter to this Division for hearing.

The due process hearing was held on March 30 and 31, 2004. The parties submitted post-hearing briefs on April 23, 2004. Pursuant to the joint request of the parties, the decision deadline was extended to April 30, 2004.

ISSUES

  1. Does the Student's current individualized education program (IEP) lack measurable goals and/or benchmarks?

  2. Is the Student's current behavioral intervention plan appropriate, and is it being implemented by the Hamilton-Sussex School District (the "District")?

  3. Has the District denied the Parents reasonable access to the school?

  4. Has the District failed to implement portions of the Student's current IEP, including his academic schedule?

  5. Is the placement set forth in the Student's current IEP appropriate?

FINDINGS OF FACT

  1. The Student is a nine-year-old child with a disability in need of special education and related services, as defined by state and federal law, who resides in the District. He has attended Woodside Elementary School in the District intermittently during the 2003-2004 school year. (Ex. 3, 8)

  2. The Student has been diagnosed with having pervasive developmental disorder not otherwise specified, on the autism spectrum, with severe apraxia. He is non-verbal, has a short attention span, and displays impulsivity and aggressive behaviors at times. (Tr. 105:15-20; 186:3-13, 250:4-15, 253:4-14, 366:4-10)

  3. In June 2003, the District retained Mark Leddy, PhD., to help the IEP team develop the Student's special education program. Mr. Leddy is an experienced speech and language diagnostician/pathologist and an instructor at the University of Wisconsin-Madison in the Department of Communicative Disorders. (Ex. 1) He has developed hundreds of IEPs in other school districts and has worked with a number of other students with apraxia, some of whom were also on the autism spectrum. (Tr. 20:1-22:21)

  4. Mr. Leddy spent over 50 hours developing the annual goals for the Student's IEP for the 2003-2004 school year. (Tr. 24:21-24) He observed the Student in the special education classroom, reviewed the existing IEP, interviewed and consulted with the Student's teachers and another consultant, obtained input from the Parents, and discussed with the Student's mother what the Wisconsin Early Autism Project (WEAP) therapists were doing to help the Student with goal-related behavior in the home. (Tr. 23:20-24:20)

  5. An IEP developed for the Student on August 26, 2003 included seven annual goals and benchmarks for each goal. (Ex. 2) Each of the annual goals indicated that baseline information would be established on September 3, 2003. For each of the goals, the IEP stated that "[p]rogress will be measured by documenting the student's performance level above baseline." (Ex. 2)

  6. The District collected baseline data related to each of the Student's annual goals in September 2003 and presented the baseline data to the Parents in October 2003. (Ex. 6, Tr. 64:20-25, 65:1-14) The Student's special education teacher used the data and collected new data to measure the Student's progress towards the annual goals for the first and second quarters. (Tr. 109:23-110:2)

  7. The August 2003 IEP did not include a behavioral intervention plan (BIP) for the Student. (Ex. 2) The District began developing a BIP for the Student in September 2003. (Tr. 72:20-73:2)

  8. In October 2003, one of the Student's therapists from WEAP observed the Student in school for part of a day. District staff held monthly meetings with the Parents, and the WEAP therapist attended the October meeting and reported that she saw District staff not using behavior management techniques appropriately and/or consistently with the Student. (Tr. 191-192, 221:3-6) In response to the WEAP therapists' concerns, the District made revisions to the Student's BIP, and the revised BIP was presented at an IEP team meeting on December 11, 2003 that the WEAP therapist attended. (Tr. 214:16-215:4, 221:3-17)

  9. A very poor relationship exists between the Parents and the District, characterized by extreme distrust and lack of cooperation. (Tr. 52:2-16, 157:13-21, 158:1-18, 159:12-21, 164:9-17, 217:4-6, 268:18-20, 423:5-8, 452:22-25, 460:17-21) The Parents have refused to provide the District with any of the Student's medical information. (Tr. 319:1-23, Ex. 20) Since October 2003, the Parents have declined to have the District provide occupational therapy to the Student, despite an IEP team determination that he should receive it, because of their concerns about the District's occupational therapist. (Tr. 320:7-321:7, Ex. 2) Several of the Student's teachers and aides are very intimidated by the Student's mother, and one of the Student's aides requested and was granted a reassignment. (Tr. 84:2-11, 119:21, 165:6-16, 324:12-325:1)

  10. On October 29, 2003, the Student's mother observed District staff and the Student engaging in one-on-one instruction and eating a snack in a small room within the special education classroom. (Tr. 397:25-403:16) The mother was upset that the Student was being taught in the small room and "treated like an animal" and removed him from school. (Tr. 172:10-173:14, 403:18-25, Ex. 19) The August 2003 IEP included a provision that "[a]t times [the Student] may benefit from one-on-one instruction provided in a distraction free environment. That environment will have a door with a window." (Ex. 2) The small room did have a door with a window and was used for instruction of other students, as well. (Tr. 41:22-24, 326:10-20)

  11. The Student did not return to school until November 25, 2003. (Ex. 8) From November 25, 2003 until January 21, 2004, the Student's mother came to school with him every day. (Tr. 411:3-8) The District prescribed rules regarding the Parent's daily presence and observation in the classroom. (Ex. 10) District staff and the Student's mother disagree as to whether her presence in the classroom distracted the Student and other students, disrupted students' learning, and increased the Student's aggressive behavior. (Tr. 43:7-24, 155:21-25, 172:6-9, 128:16-129:19, 412:3-12)

  12. By letter dated November 23, 2003, and at a meeting the next day, the Parents requested that the District transfer the Student to another school district because of "the lack of trust and communication created by Mrs. Jorgensen (the school principal) and Mr. Leddy." (Ex. 12) The Supervisor of Special Services investigated possible placement for the Student in the Germantown and Arrowhead School Districts, as requested by the Parents. (Ex. 13) Tuition placement (to be paid by the District) was not available for the Student in those two districts, so the District also checked on possible placement in several other nearby school districts. (Ex. 13) On December 2, 2003, the Parents informed the District that they were not interested in placement in any of the other school districts. (Ex. 20)

  13. The District held IEP team meetings to review and revise the Student's IEP and to determine placement on November 20, December 4, December 11, and December 18, 2003 and on January 15 and January 21, 2004. Both Parents participated in the IEP team meetings held on November 20, December 4, and December 11, 2003. The Student's father participated in the January 15, 2004 IEP team meeting. The Student's mother participated in the meetings on December 18, 2003 and on January 21, 2004. (Ex. 3)

  14. The Student's annual goals in the January 21, 2004 IEP are unchanged from those in the August 2003 IEP. (Ex. 2, 3) As in the August 2003 IEP, the annual goals in the January 2004 IEP refer to baseline information established on September 3, 2003, and progress toward the annual goals is to be measured by documenting the Student's performance level above baseline. (Ex. 3) The baseline data itself is not included in the January 21 IEP. (Ex. 3)

  15. The Student's August 2003 and January 2004 IEPs both state that his "daily schedule will be consistently followed in an exact order." (Ex. 2, p. 15; ex. 3, p. 32) The Student had daily class schedules established for the 2003-2004 school year. (Ex. 7) The Student's special education teacher followed the schedule as a guideline and altered or modified the beginning and ending times that the Student attended certain classes, as needed, in response to his behaviors, the length of his school day, and his attention/interest in an activity. (Tr. 104:1 - 108:12)

  16. The Student's current IEP, dated January 21, 2004, contains a behavior management plan, as well as two "special factors" pages that relate to behavioral intervention techniques. (Ex. 3, p. 11) The special factors pages relate to the "pog system" and the "1-2-3 magic program and time-out consequence program for transitions." (Ex. 3, pp. 9-10) The behavior management techniques on the two special factors pages are consistent with the way those techniques are applied by WEAP staff in the Student's home. (Tr. 215:5-19)

  17. The January 2004 IEP also includes a page entitled "Attached Addendum to [Student]-IEP" with the subtitle "Behavioral Intervention Plan." (Ex. 3, p. 14) This page was attached at the request of the Parent, and the parent's request is documented on page 12 of the IEP. The District did not view this Addendum as part of the IEP's behavior management plan, but simply as documentation of the Parent's concerns. (Tr. 35:8-21)

  18. Prior to the January 21, 2004 IEP team meeting, the Supervisor of Special Services contacted the Hartland-Lakeside School District about possible placement of the Student in that district and learned that Hartland had an opening available for the Student in their special education program. (Tr. 327:17-19, 353:2-9) She described the Student's needs and services in his IEP to Hartland's Director of Special Education, and Hartland's Director assured her that the Student's needs and services in his IEP could be provided for at Hartland North Elementary School. (Tr. 361:4-25)

  19. The Supervisor of Special Services participated in the January 21, 2004 IEP team meeting as one of the local educational agency representatives. (Ex. 3) She informed the other IEP team participants what the Director of Special Education at Hartland-Lakeside School District had told her about that district's ability to meet the Student's IEP needs prior to the team making the placement determination. (Tr. 362:1-20) The IEP team determined that the proper placement for the Student was at Hartland North Elementary School. (Ex. 3) The IEP team explained why the Student was not being offered placement at his neighborhood school in the IEP's Notice of Placement, as follows:

    As the discussion of placement began, the IEP team discussed the district's ability to deliver the IEP. The regular education teacher stated that [the mother's] presence in the regular education classroom escalates [the Student's] excitability and further reduces the amount of time [the Student] is able to participate in the regular education classroom. [The father] then stated that behavior and education gains had occurred in the past and that the current placement has become inappropriate. In addition, he expressed concerns about his son's safety at Woodside Elementary. The team agreed that the current placement at Woodside School is no longer appropriate due to a breakdown of trust and the effect parental conduct has on the provision of FAPE. (Ex. 3)

  20. The Parent(s) refused the placement offer, and the Student has not attended school since January 21, 2004. (Tr. 420:13-15, Ex. 8)

  21. The bus ride from the Student's home to the Hartland North Elementary School would take approximately six minutes longer than his bus ride to Woodside School. (Tr. 338:6-9)

  22. By letter dated January 26, 2004, the District confirmed that, per the revised IEP, the small room in the special education classroom would no longer be used with the Student. (Ex. 11) The letter further stated that:

    This memo further serves as confirmation of our verbal conversations that [the Student's mother] may no longer attend or visit Woodside School unless she receives the advance written permission of principal Linda Jorgensen. This decision is based on the fact that [her] presence at school and in the classroom has inhibited and at times prevented the district from implementing [the Student's] IEP and the provision of FAPE. [The mother] may attend the monthly meetings in the office area at Woodside School which have been established to discuss [the Student's] education.

  23. The District did not impose any limitations upon the Student's father visiting or attending the school. (Ex. 11)

DISCUSSION

The IDEA requires that all children with disabilities are offered a free appropriate public education (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).

In Rowley, the Supreme Court offered a two-prong test to determine if a child has received FAPE: (1) whether there has been compliance with the IDEA's procedural requirements; and (2) whether the IEP is reasonably calculated to provide educational benefits. 458 U.S. 176, 206-07. A procedural violation must be found to have resulted in substantive harm to the child and parents for relief to be granted on that basis. See Knable ex re. Knable v. Bexley City School District (citing Metropolitan Bd. of Public Educ. v. Guest), 193 F.3d 457, 464-65 (6th Cir. 1999).

Measurable annual goals and/or benchmarks

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

A statement of measurable annual goals, including benchmarks or short-term objectives . . . 34 CFR § 300.347(a)(2). See also § 115.787(2)(b), Wis. Stats.

The Student's current IEP includes annual goals and benchmarks. The annual goals are measurable, provided one has the baseline data. The District established the baseline data in September 2003 and provided it to the Parents in October 2003.

It is rather perplexing that the District did not include the baseline data in the current IEP in January 2004. It certainly would have been easy enough to do so. Nevertheless, the fact that the baseline data is not included in the IEP itself, and instead exists in another document, does not constitute a procedural violation that caused substantive harm to the Student and does not render the annual goals unmeasurable. Moreover, the annual goals and benchmarks were the result of hours of work by consultants, the Parents, and District staff, and they are certainly calculated to provide educational benefit to the Student.

Behavioral Intervention Plan

The Student's current IEP, dated January 21, 2004, includes a behavior management plan. (Ex. 3) At the request of the Parents, another behavioral intervention plan that was drafted by the Parents and used at home by the Parents and WEAP staff is also attached to the IEP. Under the "Parent Concerns" section of the IEP, it states that the parents requested attachment of the addendum. (Ex. 3) Dr. Leddy testified that the addendum was attached so as to include the parents' ideas and concerns in the IEP but that it is not the governing behavioral intervention plan. (Tr. 35:8-21)

Counsel for the Student argues that it is confusing to have two BIPs in the current IEP. The IEP may have been a bit clearer and cleaner without the Parents' BIP attached as an addendum in the middle of the IEP. However, the District apparently attached the Parents' BIP as an addendum in a good faith response to the Parents' request. The District's acquiescence to the Parents' request does not cause the behavior management plan to be inappropriate. Moreover, no other evidence was presented in support of the claim that the behavior management plan in the Student's current IEP is inappropriate.

The Student's therapist from WEAP testified that she saw District staff inappropriately or inconsistently utilize behavior management techniques with the Student during her partial-day classroom observation in October 2003. (Tr. 191-192, 221:3-6) Her observations from October 2003 do not relate to the issue at hand -- the District's implementation of the Student's current behavior management plan. The current behavior management plan was presented at an IEP team meeting on December 11, 2003 and incorporated into the current IEP on January 21, 2004.

Since December 11, 2003, the Student attended 15 days of school in the District. There was no evidence presented regarding a failure by the District to implement the behavior management plan since that time. Since January 21, 2004, the Student has not attended school in the District. Therefore, the District has not had the opportunity to implement the behavior management plan in the current IEP since then.

Parental access to the school

State and federal special education laws require school districts to allow parents to meaningfully participate in their child's special education program. Specifically, districts must appoint parents to the child's IEP team, allow parents to participate in meetings about the identification, evaluation, placement, and provision of a FAPE to the child, and allow parents to examine the child's education records. See §§ 115.78(1m)(a) and (3)(d), and 115.792(1)(a)1., Wis. Stats. See also 34 CFR §§ 300.344(a)(1), 300.345, and 300.501.

State and federal special education laws do not, however, govern parents' physical access to school district buildings. Under Wisconsin law, school boards are granted the authority to control and set requirements for access to school buildings by parents and other persons. See § 120.13 (35)(a), Wis. Stats.

The District did not impermissibly limit either of the Parents' rights to participate in IEP team meetings or to examine the Student's records. The District set limits upon one Parent's ability to visit and attend the Student's school, pursuant to its authority under § 120.13(35)(a), Wis. Stats. The District's limitations on that Parent's access to the school building do not violate state and federal special education laws and do not constitute a denial of FAPE to the Student.

Failure to implement the Student's IEP

The District did not fail to implement portions of the Student's current IEP, including his academic schedule. The special education teacher testified that the exact times listed on the Student's class schedule were sometimes modified or limited. She explained that the reasons for such time modifications included: his behaviors that impeded attendance, he had a shortened school day, and his lack of attention to or interest in the class limited attendance time. (Tr. 104:20 - 108:12)

The Student's current IEP states that his daily schedule should be followed in "exact order." The variations of the exact class times that occurred do not rise to the level of failure to implement the Student's IEP or a denial of FAPE. There was no other evidence presented relating to the District's alleged failure to implement portions of the Student's IEP.

January 2004 Placement Offer

The FAPE determination is at the threshold of the placement decision. As stated earlier, the FAPE determination involves two questions: (1) whether there has been compliance with the IDEA's procedural requirements; and (2) whether the IEP is reasonably calculated to provide educational benefits. Rowley, 458 U.S. 176, 206-07.

In determining a child's educational placement, a school district must ensure that the placement decision "[i]s made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options." 34 CFR 300.552(a)(1). A school district must provide prior written notice to parents whenever it proposes to change or refuses to change a child's placement. See § 115.792, Wis. Stats. In addition, a district must ensure that a child's placement is: (1) determined at least annually; (2) is based on the child's IEP; and (3) is as close as possible to the child's home. 34 CFR 300.552(b).

The regulations implementing the IDEA also state that the child should be educated in the school that he or she would attend if nondisabled, unless the IEP of a child with a disability requires some other arrangement. 34 CFR 300.552(c). In selecting the least restrictive environment for placement, the IEP team should give consideration "to any potential harmful effect on the child or on the quality of services that he or she needs." 34 CFR 300.552(d). The neighborhood school provision in the law is a preference, not an absolute requirement. See Hudson v. Bloomfield Hills, 910 F.Supp. 1291 (1995), aff'd 108 F.3d 112 (6th Cir. 1997).

In this case, the District complied with the procedural requirements of the law. The IEP team, including one or both of the Parents, met six times to review and revise the Student's IEP and determine placement. (Ex. 3) The IEP team included persons knowledgeable about the child, his evaluation and program needs, and placement options. The IEP team included the Supervisor of Special Services who had the authority to commit agency resources (for tuition payment to another district) and was able to ensure that the services set out in the Student's IEP would be provided for in the Hartland School District. (Tr. 362:1-20) The parents were provided verbal and written notice of the change in placement prior to its effective date. (Ex. 3)

The District's placement offer also satisfies the second prong of the Rowley test in that it is reasonably calculated to provide educational benefit to the Student. The IDEA does not limit the factors that may be considered in determining whether an educational placement is appropriate. See Board of Educ. v. Illinois State Bd. Of Educ., 938 F.2d 712 (7th Cir. 1991). The factors must be case-specific. See Beth B. v. Van Clay, 211 F.Supp.2d 1020, 1026 (N.D. Ill. 2001); aff'd 282 F.3d 493 (7th Cir. 2002).

While not a factor frequently considered, the relationship between parents and a school district may be considered in determining the appropriate placement of a child. In affirming a hearing officer's order requiring the private school placement of a child, the Seventh Circuit expressly considered "the state of relations between the [parents] and the [school] board." Board of Educ., 938 F.2d at 717.

Here, the IEP team appropriately considered whether the Student's IEP could be implemented in the District at Woodside, his neighborhood school. As set forth in the Notice of Placement, the IEP team considered the District's "ability to deliver the IEP" and determined that placement at Woodside School "is no longer appropriate due to a breakdown of trust and the effect parental conduct has on the provision of FAPE" to the Student. (Ex. 3) This was a reasonable conclusion, given that, at the January 15, 2004 IEP team meeting, the Student's father informed the Supervisor of Special Services that he did not believe Woodside School was an appropriate placement for the Student because trust between the District and the Parents was irreparably broken. (Tr. 330:1-13, 331:6-332:2)

Based upon the information provided by the Supervisor of Special Services regarding other placement options, the IEP team then determined that the Student's IEP could be implemented in the Hartland School District and that placement at Hartland North Elementary School was appropriate for the Student. (Ex. 3, Tr. 362:1-20)

The level of distrust and even contempt between the Parents and District staff in this case is so high that the relationship between the parties must be considered in determining whether the Student would be able to receive educational benefit if placed at Woodside School. Although the Student's mother testified that she believes Woodside is the appropriate placement for the Student, she also testified that she would not send her son to school there if she were not allowed to enter the building to check on him. (Tr. 423:9-12, 469:2-10) The Parent stated that she would be willing to decrease her visits from 15 minutes per day to not at all when she and her husband determined that the Student would be safe at Woodside. (Tr. 472:9-12)

As discussed previously, school districts have the authority to restrict access to school buildings. The District has made it clear that it views the presence of the Student's mother in school to be disruptive to the Student and other students and that her access to school is now restricted. (Ex. 11, Tr. 43:7-24, 155:21-25, 172:6-9, 128:16-129:19) If she is not allowed into Woodside as she wishes, the Parent will not send the Student to school. Clearly, the District cannot provide a FAPE to the Student if he is not attending school.

In light of the extremely distrustful and hostile relationship between the Parent(s) and the District, placement at Woodside would not be reasonably calculated to provide the Student with educational benefit. The Hartland School District assured the District that it could provide for the Student's needs and services in his IEP. While Hartland North Elementary is not the Student's neighborhood school, it will take only six minutes longer for him to get there than to Woodside. The District's placement offer at Hartland North Elementary School is appropriate.

CONCLUSIONS OF LAW

  1. The Student's current IEP contains measurable goals, including benchmarks.

  2. The Student's current behavioral intervention plan is appropriate and has been implemented by the District to the extent possible, given the Student's limited attendance since its adoption.

  3. The District has not denied the Parents reasonable access to the school under state and federal special education laws and regulations.

  4. The District has not failed to implement portions of the Student's current IEP, including his academic schedule.

  5. The placement set forth in the Student's current IEP is appropriate.

ORDER

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

Dated at Madison, Wisconsin on April 30, 2004.

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 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. 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.