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Before The
The Parties to this proceeding are: [address] Neenah, WI 54956 Neenah School District, by Axley Brynelson, LLP One Park Plaza, Suite 500 P O BOX 1767 Madison, WI 53701-1767
On April 26, 2004, 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) from Attorney Lori Lubinsky on behalf of the Neenah School District (District) and referred the matter to this Division for hearing. The due process hearing was held on June 1, 7, and 21, 2004. Eric Hjortness (Parent) appeared on behalf on the Student at the hearing, except for the afternoon of the third hearing day when Attorney David Winkel represented the Student. Attorney Lubinsky and Mr. Hjortness filed post-hearing briefs, and the record closed on July 7, 2004. At the request of both parties, the deadline for issuance of a decision in this matter was extended to July 23, 2004. The District seeks a determination that its March 2004 evaluation of the Student was appropriate and that, consequently, the Student's Parents are not entitled to an independent educational evaluation (IEE) at public expense.
The District filed a due process hearing request seeking a determination that its evaluation of the Student was appropriate and that the Parents are not entitled to an IEE at public expense. Upon the Parents' request for an IEE, state and federal law required the District either to initiate the IEE or to request a due process hearing. Wis. Stat. § 115.80(1)(b); 34 CFR § 300.502(b)(2). The District met its burden of establishing at the due process hearing that its evaluation of the Student was appropriate. School districts are obligated by state and federal law to conduct an initial evaluation to determine whether a student is a child with a disability1 before providing special education2 and related services to the student. 34 CFR § 300.531, Wis. Stat. § 115.782. In order to conduct an initial evaluation of a child, a District must first appoint an IEP team of qualified individuals. Section 115.78(1m), Wis. Stats., directs districts to appoint IEP team participants as follows: (a) The parents of the child. (b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment. (c) At least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability as specified in s. 115.76 (5) (a) or, where appropriate, at least one special education provider of the child. (d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency. (e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f). (f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate. (g) Whenever appropriate, the child. Here, the District appointed an IEP team for the Student that contained all of the required participants and more. The evaluators on the IEP team were experienced, trained and knowledgeable in their respective fields, in accordance with legal requirements. Despite the Parents' arguments to the contrary, there is no evidence that the IEP team members were unqualified and lacked the knowledge or recent training and experience necessary to appropriately evaluate the Student and participate on the IEP team. Once a proper IEP team has been appointed, districts must adhere to the following requirements when conducting an evaluation to determine a child's eligibility for special education: (a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following: 1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities. 2. Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 3. Ensure all of the following: a. That tests and other evaluation materials used to assess a child under this section are selected and administered so as not to be racially or culturally discriminatory and are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so. b. That any standardized tests that are given to the child have been validated for the specific purpose for which they are used, are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of such tests. c. That the child is assessed in all areas of suspected disability. d. That assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are used. (b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following: 1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers. 2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following: a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability. b. The present levels of performance and educational needs of the child. c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services. d. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable, annual goals specified in the child's individualized education program and to participate, as appropriate, in the general curriculum. (c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b)2. (d) If a child is attending a public school in a nonresident school district under s. 118.51 or 121.84 (1)(a) or (4), when the individualized education program team conducts its initial evaluation of the child or any reevaluation of the child under sub. (4), the team shall include at least one person designated by the school board of the child's school district of residence who has knowledge or special expertise about the child. (e) Each individualized education program team participant who administers tests, assessments or other evaluation materials as part of an evaluation or reevaluation of a child under this section shall prepare and make available to all team participants at a team meeting a written summary of the participant's findings that will assist with program planning. (3) Determination of eligibility for special education. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability. The individualized education program team may not determine that a child is a child with a disability solely because the child has received insufficient instruction in reading or math or because the child has limited proficiency in English. (c) If the individualized education program team determines that a child is not a child with a disability, the team shall prepare an evaluation report. The report shall identify any educational needs of the child and any services offered by the local educational agency from which the child may benefit and shall include information about any programs and services, other than those offered by the local educational agency, that may benefit the child. The local educational agency shall give a copy of the evaluation report to the child's parents with the notice under s. 115.792 (1) (b). Wis. Stat. §§ 115.782(2) and (3). The District has established that its conduct of the Student's evaluation met the applicable legal standard. The District assessed the Student in all areas of suspected disability and conducted OT and PT assessments at the Parents' request. Based upon the Parents' concerns and previous clinical diagnoses, the Student was evaluated for suspected disabilities in the areas of autism, speech and language, and OHI. The District's eligibility criteria for autismi, speech and languageii, and OHIiii are the same as that set forth in the Wisconsin Administrative Code. The Student's IEP team utilized and reasonably applied the proper eligibility criteria in its evaluation of the Student. As required by law, the IEP team used a variety of assessment tools, and tests were administered by trained, qualified individuals. The IEP team did not use any single procedure or rely on any single source of information. It received and considered information from the Parents, including medical and clinical records of the Student's. The IEP team reviewed the Student's educational records and considered information from past teachers of the Student's in the District and from current staff at Seton, including teachers, the principal, and the guidance counselor. All of the IEP team members who assessed the Student completed individual written evaluation reports. Their reports were provided to all of the IEP team participants, including the Parents, at the March 29 meeting. The law does not require that the individual evaluation reports be provided to the IEP team participants prior to the IEP team meeting, as alleged by the Parents. All members of the IEP team, except for the Parents, concluded that the Student does not meet the eligibility criteria for autism, speech and language impairment, and OHI. The IEP team's determination was reasonably and appropriately based upon all of the considerable information and data reviewed, obtained, and learned about the Student during the evaluation process. The testimony of one of the Parent's experts offered support to the IEP team's determination. Dr. Inglese testified that the Student's disorders have not, heretofore, affected her ability to learn. (Tr. III:69) He further indicated that, over time, her disturbances might negatively impact her learning, but that thus far the evidence indicates that she is succeeding in school. (Tr. III:70) Under the IDEA, when parents disagree with a school district's evaluation of their child, they have the right to an IEE at public expense, unless the district proves at a due process hearing that its evaluation was appropriate. See Letter to Young, 39 IDELR 98 (OSEP 2003). Here, the District has met its burden of proof and has shown that its evaluation of the Student was appropriate. Therefore, the Parents are not entitled to an IEE of the Student at public expense. There was considerable testimony and argument by the parties as to whether Dr. Watson's testing of the Student constituted an IEE and whether the Parents and the District complied with the law and District policy regarding IEE procedures. Based upon my conclusion that the District's evaluation was appropriate, it is not necessary to address those arguments.
The District's evaluation of the Student was appropriate; therefore, the Parents are not entitled to an IEE of the Student at public expense.
The Parents are not entitled to an IEE of the Student at public expense, and the District is not required to reimburse the Parents for the cost of Dr. Watson's assessment of the Student. Dated at Madison, Wisconsin on July 23, 2004. 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
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. _________________1The term "child with a disability" is defined in 20 U.S.C. § 1401 as: (A) IN GENERAL The term 'child with a disability' means a child (i) with mental retardation, hearing impairments …, speech or language impairments, visual impairments …, serious emotional disturbance …, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services. See also Wis. Stat. § 115.76(5); 34 C.F.R. § 300.7(a)(1). (i) To address the unique needs of the child that result from the child's disability; and (ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children. See also 20 U.S.C. § 1401(25); Wis. Stat. § 115.76(15). (b) The results of standardized or norm-referenced instruments used to evaluate and identify a child under this paragraph may not be reliable or valid. Therefore, alternative means of evaluation, such as criterion-referenced assessments, achievement assessments, observation, and work samples, shall be considered to identify a child under this paragraph. Augmentative communication strategies, such as facilitated communication, picture boards, or signing shall be considered when evaluating a child under this paragraph. To identify a child under this paragraph, the criteria under subd. 1. and 2. and one or more criteria under subd. 3. through 6. shall be met. 1. The child displays difficulties or differences or both in interacting with people and events. The child may be unable to establish and maintain reciprocal relationships with people. The child may seek consistency in environmental events to the point of exhibiting rigidity in routines. 2. The child displays problems which extend beyond speech and language to other aspects of social communication, both receptively and expressively. The child's verbal language may be absent or, if present, lacks the usual communicative form which may involve deviance or delay or both. The child may have a speech or language disorder or both in addition to communication difficulties associated with autism. 3. The child exhibits delays, arrests, or regressions in motor, sensory, social or learning skills. The child may exhibit precocious or advanced skill development, while other skills may develop at normal or extremely depressed rates. The child may not follow normal developmental patterns in the acquisition of skills. 4. The child exhibits abnormalities in the thinking process and in generalizing. The child exhibits strengths in concrete thinking while difficulties are demonstrated in abstract thinking, awareness and judgment. Perseverant thinking and impaired ability to process symbolic information may be present. 5. The child exhibits unusual, inconsistent, repetitive or unconventional responses to sounds, sights, smells, tastes, touch or movement. The child may have a visual or hearing impairment or both in addition to sensory processing difficulties associated with autism. 6. The child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects. The child's capacity to use objects in an age-appropriate or functional manner may be absent, arrested or delayed. The child may have difficulty displaying a range of interests or imaginative activities or both. The child may exhibit stereotyped body movements. Wis. Admin. Code § PI 11.36(8). iiSPEECH OR LANGUAGE IMPAIRMENT. (a) Speech or language impairment means an impairment of speech or sound production, voice, fluency, or language that significantly affects educational performance or social, emotional or vocational development. (b) The IEP team may identify a child as having a speech or language impairment if the child meets the definition under par. (a) and meets any of the following criteria: 1. The child's conversational intelligibility is significantly affected and the child displays at least one of the following: a. The child performs on a norm referenced test of articulation or phonology at least 1.75 standard deviations below the mean for his or her chronological age. b. Demonstrates consistent errors in speech sound production beyond the time when 90% of typically developing children have acquired the sound. 2. One or more of the child's phonological patterns of sound are at least 40% disordered or the child scores in the moderate to profound range of phonological process use in formal testing and the child's conversational intelligibility is significantly affected. 3. The child's voice is impaired in the absence of an acute, respiratory virus or infection and not due to temporary physical factors such as allergies, short term vocal abuse, or puberty. The child exhibits atypical loudness, pitch, quality or resonance for his or her age and gender. 4. The child exhibits behaviors characteristic of a fluency disorder. 5. The child's oral communication or, for a child who cannot communicate orally, his or her primary mode of communication, is inadequate, as documented by all of the following: a. Performance on norm referenced measures that is at least 1.75 standard deviations below the mean for chronological age. b. Performance in activities is impaired as documented by informal assessment such as language sampling, observations in structured and unstructured settings, interviews, or checklists. c. The child's receptive or expressive language interferes with oral communication or his or her primary mode of communication. When technically adequate norm referenced language measures are not appropriate as determined by the IEP team to provide evidence of a deficit of 1.75 standard deviations below the mean in the area of oral communication, then 2 measurement procedures shall be used to document a significant difference from what would be expected given consideration to chronological age, developmental level, and method of communication such as oral, manual, and augmentative. These procedures may include additional language samples, criterion referenced instruments, observations in natural environments and parent reports. (c) The IEP team may not identify a child who exhibits any of the following as having a speech or language impairment: 1. Mild, transitory or developmentally appropriate speech or language difficulties that children experience at various times and to various degrees. 2. Speech or language performance that is consistent with developmental levels as documented by formal and informal assessment data unless the child requires speech or language services in order to benefit from his or her educational programs in school, home, and community environments. 3. Speech or language difficulties resulting from dialectical differences or from learning English as a second language, unless the child has a language impairment in his or her native language. 4. Difficulties with auditory processing without a concomitant documented oral speech or language impairment. 5. A tongue thrust which exists in the absence of a concomitant impairment in speech sound production. 6. Elective or selective mutism or school phobia without a documented oral speech or language impairment. (d) The IEP team shall substantiate a speech or language impairment by considering all of the following: 1. Formal measures using normative data or informal measures using criterion referenced data. 2. Some form of speech or language measures such as developmental checklists, intelligibility ratio, language sample analysis, minimal core competency. 3. Information about the child's oral communication in natural environments. 4. Information about the child's augmentative or assistive communication needs. (e) An IEP team shall include a department-licensed speech or language pathologist and information from the most recent assessment to document a speech or language impairment and the need for speech or language services. Wis. Admin. Code § PI 11.36(6). iiiOther health impairment means having limited strength, vitality or alertness, due to chronic or acute health problems. The term includes but is not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, or acquired injuries to the brain caused by internal occurrences or degenerative conditions, which adversely affects a child's educational performance. Wis. Admin. Code § PI 11.36(10), See also 34 C.F.R. § 300.7. |