Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO:

Mr. Robert T. Pledl Wisconsin Coalition for Advocacy 2040 W. Wisconsin Avenue, Ste. 678 Milwaukee, WI 53233

Ms. Susan Bickert [address]

PROCEDURAL HISTORY

On or about February 27, 1998, and again on June 25,1998, the [Parents] filed a request for a due process hearing. The parties agreed to consolidate the two requests. The hearing in this matter was held on October 26 and 27, 1998, and completed on December 1, 1998. Attorney Susan D. Bickert appeared on behalf of the [Unnamed School District]. Attorney Robert T. Pledl appeared on behalf of the [Parents]. Post hearing briefs were filed on February 5 and March 5, 1999.

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

1. [Student] (dob xxxxx) resides within the [Unnamed School District] ([XXX] or District). During the fall of the 1996-97 school year, [Student] attended Jackie Robinson Middle School. While there, he had numerous behavioral and attendance problems. He stopped attending Jackie Robinson on or about November 16, 1996.
2. In January of 1997, [Student] began receiving his academic instruction through the [XXX] Home and Hospital Program. He continued receiving homebound instruction for the remainder of that school year.
3. A multidisciplinary team (M-team) meeting was held on July 23, 1997. The M-team determined that [Student] had an emotional disturbance (ED) and that he was eligible to receive exceptional education services.
4. An individualized education plan (IEP) was developed for [Student] on or about September 18, 1997. A placement offer was extended on October 10, 1997. The District offered to place [Student] at Steuben Middle School.
5. On October 20, 1997, Mrs. [Mother], [Student]’s mother, verbally rejected the placement offer at Steuben, and instead requested that [XXX] pay [Student]’s tuition at Kradwell, a private school located in Wauwatosa, Wisconsin. [Student] subsequently enrolled as a student at Kradwell for the 1997-98 school year.
6. An IEP meeting was held on June 15, 1998, to plan for [Student]’s transition into ninth grade. An offer of placement followed on June 19, 1998. The District offered to place [Student] at the [City] High School for the Arts (MHSA). Mrs. [Mother] rejected that placement offer on June 24, 1998. [Student] again enrolled at Kradwell for the 1998-99 school year.
7. Kradwell School is an accredited Wisconsin high school. Approximately nineteen (19) school districts have students enrolled there. Kradwell employs at least two teachers who are certified in the area of special education.
8. Dr. Stephen Sinclair conducted an independent educational evaluation of [Student] and submitted his findings to both the District and the [Parents] on April 8, 1998. He also submitted an updated report on October 14, 1998, and a "Clarification Addendum" on April 21, 1998.
9. Dr. Randall Rowlett is a board certified child psychiatrist and is also [Student]’s treating physician. He has diagnosed [Student] as having both a bipolar disorder and a circadian sleep rhythm disorder. [Student] also suffers from paranoid delusions.

1. The [Unnamed School District] System failed to provide [Student] with an appropriate placement during the 1997-98 school year contrary to the Individuals With Disabilities Education Act, 20 U.S.C. § 1400, et. seq., and Chapter 115, Wis. Stats.
2. The [Unnamed School District] System failed to provide [Student] with an appropriate placement during the 1998-99 school year contrary to the Individuals With Disabilities Education Act, 20 U.S.C. § 1400, et. seq., and Chapter 115, Wis. Stats.

NOW THEREFORE IT IS ORDERED that the [Parents] request for tuition reimbursement at Kradwell School for the 1997-98 and 1998-99 school years is hereby granted.

Under the Individuals With Disabilities Education Act, school districts must provide disabled children with a free and appropriate public education. 20 U.S.C. §1400, et. seq. The United States Supreme Court has defined a "free and appropriate public education" (FAPE) as one which guarantees a reasonable probability of educational benefit to a child. Board of Education v. Rowley, 458 U.S. 176 (1982). The Court has set forth a two-pronged test to determine whether a school district has provided a child with a FAPE. The first question is whether the district complied with the procedures under the Act? And the second is whether the individualized education plan (IEP) is reasonably calculated to enable the child to receive an educational benefit? Id.

According to Rowley, school districts are required to provide handicapped children with a "basic floor of opportunity" which consists of access to specialized instruction and related services that are individually designed to provide educational benefit to the handicapped child. Id. But districts need not furnish every special service necessary to maximize each handicapped child’s potential. Id.

The procedural requirements under the IDEA are not at issue in this case; however, the proposed placements are. In particular, the question is whether the Steuben Middle School and the [City] High School of the Arts placements recommended by the District were inappropriate for [Student] such that he would not receive an educational benefit? To determine whether those placements were appropriate, one must first consider [Student]’s individual needs.

[Student] is a complex young man with a history of problematic behaviors, both in and out of school. He has been diagnosed as having both a bipolar affective disorder and a circadian sleep rhythm disorder. According to the Diagnostic & Statistical Manual of Mental Disorders, 4^th Edition (American Psychiatric Association, 1994) (hereinafter DSM), his bipolar disorder is characterized by recurrent major depressive episodes and by hypomanic episodes. He also suffers from paranoid delusions. [Student]’s sleep disorder is characterized by a persistent pattern of late sleep onset and late awakening times, with an inability to fall asleep and awaken at a desired earlier time. The type of pattern associated with his sleep disorder typically causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Id.

In September of 1994, [Student] was hospitalized for approximately two months at the [City] County Child and Adolescent Treatment Center after having had suicidal ideations. He has been on a host of different medications, including at least two anti-psychotic drugs (Risperdal and Zyprexa), to address his illnesses.

During the fall of the 1996-97 school year, [Student] attended Jackie Robinson Middle School. While there, he had numerous behavioral and attendance problems. He stopped attending Jackie Robinson on or about November 16, 1996, and began receiving instruction in January of 1997, through the [XXX] Home and Hospital Program. For the remainder of the school year, he received homebound instruction. A multidisciplinary team (M-team) was convened and a meeting held on July 23, 1997. The M-team determined that [Student] had an emotional disturbance (ED) and that he was eligible to receive exceptional education services. An individualized education plan (IEP) was subsequently developed for [Student] on or about September 18, 1997, and a placement offer at Steuben Middle School was extended on October 10, 1997.

Mrs. [Mother] verbally rejected the placement offer at Steuben on October 20, 1997, and instead requested that [XXX] pay [Student]’s tuition at Kradwell, a private school located in Wauwatosa, Wisconsin. [Student] subsequently enrolled as a student at Kradwell for the 1997-98 school year. An IEP meeting was held on June 15, 1998, to plan for [Student]’s transition into ninth grade. An offer of placement at the [City] School of the Arts (MHSA) followed on June 19, 1998. Mrs. [Mother] rejected that placement offer on June 24, 1998. In the fall, [Student] again enrolled at Kradwell for the 1998-99 school year.

The [Parents] rejected the [XXX] placement offers because they did not believe that [Student]’s needs could be met in either setting. They do not dispute the appropriateness of [Student]’s proposed IEPs, but instead believe that the placements were improper because of several other factors. Indeed, the [Parents]’s cite two cases to support their position that placements can be deemed inappropriate if there are "other factors" that prevent a child from obtaining an educational benefit. For instance, in Bd. Of Educ. of Community Consol. Sch. Dist. No. 21 v. Illinois State Board of Educ., 938 F.2d 712 (7^th Cir. 1991), the court ruled that parental hostility was an appropriate consideration in determining whether to place a child within a particular school district. According to the court:

Similarly in Greenbush Sch. Committee v. Mr. and Mrs. K,. 949 F. Supp. 934 (D. Maine 1996), the court agreed with the Seventh Circuit that parental hostility can be a factor worthy of consideration in determining whether a child’s school placement offers an educational benefit. Additionally, the court found that a "gripping fear" of a particular school can certainly prevent a child from receiving an educational benefit. Consequently, such a placement would be inappropriate. Id. at 943.

The [Parents] maintain that [Student]’s paranoid delusions regarding the [Unnamed School District] System and his sleep disorder prevent him from obtaining an educational benefit at either of the proffered placements. Their claim is strongly supported by Dr. Randall R. Rowlett, [Student]’s treating psychiatrist. Dr. Rowlett has diagnosed [Student] as having a bipolar disorder with paranoid features. During his testimony on direct examination, Dr. Rowlett provided a detailed explanation of [Student]’s paranoia as follows:

Transcript, Vol. III, pgs. 498-500.

Dr. Rowlett was also questioned about whether he had attempted to "talk [[Student]] out of" his paranoia. He responded that, on occasion, he had tried that approach, without success. In addition, under questioning by the undersigned administrative law judge, Dr. Rowlett indicated that he did not think that [Student] was feigning his paranoia:

Transcript, Vol. III, pgs. 548-549.

Stephen Sinclair, a school psychologist, also conducted an independent educational evaluation of [Student] to determine which placement options were appropriate for him. Dr. Sinclair’s initial report which was completed in April of 1998, indicates that "[i]t is difficult if not impossible to assess whether the program at Steuben would meet [Student]’s needs and whether [Student] would be successful there because he has never attended the program at Steuben Middle School." He concluded that given the "lateness of the year and the fact that a disruption at the present time would be detrimental to [Student]’s education would dictate that [Student] remain at Kradwell School for the remainder of the ’97-’98 school year. [Unnamed School District] must shoulder some of the responsibility for [Student]’s placement at Kradwell due to the delay and lateness of a plan at Steuben being completed and implemented."

In October of 1998, Dr. Sinclair prepared another report in which he assessed the appropriateness of placing [Student] at the [City] School for the Arts versus Kradwell. He concluded that "[i]n a perfect world [Student] would attend Kradwell School at [XXX] expense. There is no doubt, however, that under the law, [Unnamed School District] are offering [Student], through the Individual Education Plan and the program offered at the [City] High School of the Arts, a program that is appropriate for him." Dr. Sinclair clearly agreed that [Student]’s placement at Kradwell was appropriate for the 1997-98 school year and that it would have been unwise to insist that [Student] return to Steuben mid-year whereas in his later report, he concedes that the MHSA placement would have been acceptable.

The District argues that both the Steuben and the MHSA placements were appropriate for [Student], and would have provided him with an educational benefit. The District further believes that Dr. Rowlett’s opinions regarding [Student] are biased and speculative, and as such should be discredited. Additionally, the District relies on Dr. Sinclair’s reports to support its position that the proposed placements were acceptable.

Although Dr. Rowlett’s written report contains a section that is admittedly sarcastic in tone, it in no way undermines his clinical finding that [Student] is a mentally ill adolescent and who, as a result, has unique educational needs. His paranoia is pervasive and his sleep disorder is extreme. [Student] is literally unable to rouse himself from bed in time to attend school at the normal start time. Consequently, by the time he is able to begin his school day, his peers have already been receiving instruction for approximately four hours. In addition to that, [Student] is of the mind that essentially everyone at [XXX] is out to "get him." Given his paranoid beliefs regarding [XXX] and his accompanying sleep disorder, it is extremely difficult to believe that [Student] would have been physically or mentally able to attend either Steuben Middle School or the [City] High School of the Arts.

It should be noted that [XXX], to its credit, worked diligently to create a placement that attempted to meet [Student]’s needs. In the end, though, it is hard to imagine, given the extent of his illness, that an appropriate placement within [XXX] could ever have been achieved or that [Student] would have been capable of receiving any educational benefit from them. Indeed, at this point it would appear that attendance at any [XXX] school would have a detrimental effect on him.

[Student]’s mental health must be considered an essential factor in determining whether his placement at either Steuben or MHSA was likely to result in him receiving an educational benefit. To ignore the significance of his mental health disorders in reaching that determination, is to ignore his individual needs and the requirements of the IDEA. In short, [Student]’s mental health is of paramount importance and remains a critical component in determining whether a particular placement is likely to provide him with an educational benefit. Given his unique needs, I find that [XXX] was not able to provide a placement for him in which he was likely to derive an educational benefit. Fortunately, Kradwell School was able to accommodate his needs and is therefore an appropriate placement for him.

Dated at Madison, Wisconsin, this 9^th day of April, 1999.

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 sec. 115.80 (7), Wis. Stats., or to federal district court pursuant to 20 U.S.C. § 1415 and 34 C.F.R. § 300.511.