Mr. Frank Johnson
[Unnamed] School District
[address]

Ms. Christine Stoneman
Legal Action of Wisconsin
230 W. Wells Street, Room 800
Milwaukee, WI 53203

This matter was commenced on May 20, 1997. On that date, Christine Stoneman, attorney for [Student], filed a letter with the Department of Public Instruction requesting a Due Process Hearing. A hearing was subsequently held on July 14, 1997. Attorney Frank Johnson appeared on behalf of the [Unnamed] School District. The transcript of this proceeding was received on July 25, 1997. Post hearing briefs were filed on August 1 and 13, 1997.

Based on the entire record in this case, this is the final decision and order of the undersigned administrative law judge.

1. [Student] was born on XXXXX. Until November of 1988, she was enrolled as a third grade student in a regular education classroom at West Ridge Elementary School in [City], Wisconsin. West Ridge is XXXXX's neighborhood school.

2. On November 23, 1996, XXXXX was involved in a car accident during which she sustained severe injuries. She was transported from St. Mary's Medical Center in [City] by Flight for Life to Children's Hospital of Wisconsin in Milwaukee. There she was treated for a spinal cord injury and a closed head injury. She was discharged from Children's Hospital on January 17, 1997.

3. Presently, XXXXX is quadriplegic and dependent upon a ventilator.

4. On March 5, 1997, the [Unnamed] School District (District) staff convened a multidisciplinary team (M-team) to assess XXXXX's exceptional education eligibility.

5. The M-team concluded that XXXXX had three different handicapping conditions including an orthopedic impairment, a traumatic brain injury, and an other health impairment, all of which required special education.

6. By letter dated March 25, 1997, XXXXX's parents were invited to attend a meeting with several different members of the District staff in order to develop an individualized education program (IEP) for XXXXX. On April 7, 1997, XXXXX's IEP was developed.

7. After the development of XXXXX's IEP, a Notice of Placement, dated April 11, 1997, was sent to XXXXX's parents, XXXXX. The notice indicated that XXXXX would be placed in an orthopedically impaired, self-contained modified classroom with occupational and physical therapy, and a specially designed physical education program for a partial day. The notice further indicated that XXXXX would be placed at Wadewitz School in [City].

8. Mr. and Mrs. XXXXX oppose XXXXX's placement at Wadewitz, and have instead requested that she be allowed to return to West Ridge.

9. Since January of 1997, until approximately mid-August, XXXXX has been schooled at home. As of early June, XXXXX did not have a consistent means of communication.

10. On July 9, 1997, XXXXX underwent a neuropsychological evaluation conducted by Robert F. Newby, Ph.D. Dr. Newby's report recommends that XXXXX be placed in a classroom with other children who have some degree of cognitive delay. His report also recommends that she be allowed to participate in regular classroom activities.

1. XXXXX is a child in need of exceptional education services pursuant to the Individuals With Disabilities Act (IDEA), s. 115.80, Wis. Stats., and ss. PI 11.05 and 11.06, Wis. Admin. Code.

2. Sole placement of XXXXX at Wadewitz Elementary School does not confer a free and appropriate public education to her under IDEA, Chapter 115, Wis. Stats., or PI 11, Wis. Admin. Code.

1. XXXXX shall be placed at Wadewitz Elementary School in an orthopedically impaired, self-contained modified classroom for four partial days each week.

2. XXXXX shall be placed at West Ridge Elementary School for one partial day each week for the purpose of allowing her to participate in regular education programming with her age-appropriate peers. XXXXX shall be allowed to participate in programming including, but not limited to, music, art, library activities, story-time, peer discussions, and show-and tell. XXXXX's IEP should be amended to reflect these changes. XXXXX's placement at West Ridge shall not prevent her from also being integrated into regular education programming at Wadewitz.

3. While XXXXX is attending school at West Ridge, she shall be provided with a one-to-one aide.

4. XXXXX's educational progress since the due process hearing date should be assessed and her IEP should be reviewed and modified to reflect her present level of performance.

No one, least of all an eight year old child, should have to undergo the kind of trauma that XXXXX has experienced. At age eight, XXXXX was involved in a severe car accident that left her quadriplegic. Because of that accident, she is unable to breathe on her own, and is therefore dependent upon a ventilator. She cannot feed herself and must rely on a "G-tube" to provide her with nourishment. At the moment, XXXXX is also unable to consistently communicate with other individuals.

Prior to her accident, XXXXX had been enrolled in a regular education classroom at West Ridge Elementary School. She has since been evaluated by a variety of different professionals who have concluded that she is a child in need of exceptional education. In particular, she has been identified as a child who has an orthopedic impairment, a traumatic brain injury, and an other health impairment.

After she was evaluated for exceptional education services by the [Unnamed] School District (District), a placement offer was extended to the XXXXXs. The offer recommended that XXXXX be placed at Wadewitz Elementary School in an orthopedically impaired, self-contained modified classroom with occupational and physical therapy, and a specially designed physical education program for a partial day. Mr. and Mrs. XXXXX did not object to XXXXX's being placed in school for only a portion of each day. Indeed, they have arranged for XXXXX to privately receive speech therapy, physical therapy, and occupational therapy when she is not in attendance at the District.

Instead, the XXXXXs' primary objection has been to their daughter's recommended placement at Wadewitz. They firmly believe that XXXXX would benefit most from being enrolled in a class for children who have borderline cognitive disabilities (CDB), with mainstreaming opportunities in special settings such as music, story-time, and art classes. They further believe that because XXXXX formed a social network of friends while she was a student at West Ridge, that continued social interactions with familiar, age-appropriate peers will greatly enhance her rehabilitation.

The XXXXXs position regarding XXXXX's need for familiar social contacts is supported, in part, by Dr. Newby, the neuropsychologist who evaluated XXXXX in July of 1997. Although Dr. Newby's written report indicates that it is not absolutely necessary to place XXXXX in her "home school," he does note that it would be advantageous to place her there in order to provide "[c]ontact with peers who knew her before the accident [which] could facilitate her alertness and motivation for her difficult rehabilitation work." Dr. Newby's report also notes that because XXXXX will be attended to by a full-time health care worker, that it is unnecessary for her to have an individual, dedicated teacher or an educational aide.

While the District has educated many students who are considered to be medically fragile, they have never before had to educate a child who is both quadriplegic and ventilator dependent. The District readily acknowledged that one of their reasons for placing XXXXX at Wadewitz is because Wadewitz has a full-time registered nurse on staff, whereas West Ridge only employs a nurse on a part-time basis. According to Shelley Kritek, the District's director of special education, the presence of a full time nurse is necessary because "If an emergency comes up, we feel comfortable that somebody is there in addition to XXXXX's nurse that can help immediately. That is not the case at West Ridge. [W]e want to make sure that we are attending to all her needs."

The District also voiced its concern over placing XXXXX in a CDB classroom because the staff believes that she is not at the same educational level as the other students. The students in the CDB class can communicate verbally. They also have the ability to read and write, whereas XXXXX has not yet regained those abilities. The CDB students also work on mathematics, while XXXXX's mathematical abilities are still extremely limited. Additionally, the CDB class has approximately fourteen students, while the recommended classroom at Wadewitz would have ten students, at most. Because XXXXX is not functioning at a comparable educational level as the CDB students, her educational programming would not be integrated with them, and she would have to be instructed separately. Consequently, the District concluded that it would be an inappropriately restrictive setting for XXXXX.

At Wadewitz, the District contends that XXXXX would be in a classroom with other students who have similar disabilities and similar levels of communication. The assigned classroom teacher also has experience in teaching students with XXXXX's type of disability. In addition, there are at least two aides assigned to assist the class. More importantly, the District asserts that because the class size is small, because other children in the class have similar IEPs, and because the goals and objectives contained in XXXXX's IEP can best be met in this setting, Wadewitz is the most appropriate placement for her.

Neither of the parties believe that XXXXX's primary placement should be in a regular education classroom. Accordingly, for the majority of each day XXXXX would be in a special education setting. The XXXXXs have expressed concern that XXXXX does not know the students or staff at Wadewitz. However, because XXXXX was not placed in a special education classroom prior to her accident, it is unlikely that she would know any of the EEN students or staff at either Wadewitz or West Ridge. Therefore, regardless of her placement, she would be introduced to new teachers and new students. And consequently, there would be a period of adjustment for her in either setting.

Based on the evidence presented, I believe that XXXXX would receive the best educational benefit if placed at Wadewitz for the majority of each week. At Wadewitz XXXXX will be grouped with other students who have similar exceptional education needs. She will not be isolated as would likely be the case if she were primarily placed at West Ridge. Additionally, she will receive the one-to-one attention and intensive programming that is critical to her rehabilitation. This setting is far less restrictive than a placement in a CDB classroom where she would most certainly receive separate programming with little or no meaningful interaction with the other students.

By all accounts, XXXXX was an active and social child before she was injured. According to her mother, XXXXX participated in both choir and a Brownie troop while she attended West Ridge. Dr. Newby's report suggests that in addition to special education, it would be helpful for XXXXX to participate in regular classroom activities such as story time, show-and-tell, and group discussions with her peers. He further notes that peer contact with those who knew XXXXX before her accident could facilitate her alertness and motivation in her rehabilitation, but he qualifies that statement by indicating that placement in her former school is "not absolutely necessary." It is apparent from the testimony that the XXXXXs have received a great deal of support from the parents of children who attend West Ridge. It also appears that XXXXX's classmates have continued to take an active interest in her.

XXXXX's parents believe that it is critical for her to maintain the social relationships she established with fellow West Ridge students prior to being disabled. There was anecdotal evidence suggesting that XXXXX responds favorably to familiar faces, including those of her former classmates. While I do not believe that the District failed to consider XXXXX's individual needs, I do find that the District did not give adequate consideration to how her social needs could most appropriately be met in the school setting. In particular, XXXXX's inclusion in regular classroom programming for such things as music, library, story-time, and peer discussions must be included in her IEP. Although no one can say definitively to what extent XXXXX will benefit from these types of contacts, common sense dictates that they will surely be encouraging for her.

The IDEA and Wisconsin law provide that children with disabilities receive a free and appropriate public education in the least restrictive environment. After concluding that XXXXX was a child with exceptional education needs, the District attempted to meet those needs by developing an individualized education plan for her. Nevertheless, XXXXX's present abilities need to be assessed and her IEP must be revised to reflect those changes. Given the nature of XXXXX's injuries, it is likely that her special education needs will continue to change. Accordingly, the District must be mindful of those potential changes and be ready to respond with appropriate modifications to XXXXX's IEP and her placements. In the meantime, however, her needs are most appropriately met within the orthopedically impaired classroom at Wadewitz School with mainstreaming activities primarily being provided to her at West Ridge.

Dated at Madison, Wisconsin, this 26th day of August, 1997.