Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO:	Mr. David R. Friedman	Ms. Alison E. Brewer
	Friedman Law Firm	Stadler & Schott, S.C.
	30 W. Mifflin, Ste. 202	16655 W. Bluemound Road
	Madison, WI 53703	Brookfield, WI 53005

On or about July 2, 1998, the [Parents] filed a request for a due process hearing on behalf of their son [Student]. The hearing in this matter was held on October 20 and 21, and on November 20, 1998. Attorney David R. Friedman appeared on behalf of the [Unnamed] School District. Attorneys Ronald S. Stadler and Alison E. Brewer appeared on behalf of the [Parents]. Post-hearing briefs were filed on January 8 and 25, 1999.

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

1. [Student] (dob XXXXXX) resides within the [Unnamed] School District (District) and is currently a student at [School] School (XXX) in [City], Wisconsin. He has been diagnosed as autistic.

2. The entire student population at [School] consists of children who have exceptional education needs.

3. During the 1997-98 school year, [Student] attended [School] and received the majority of his instruction in a self-contained classroom with seven other cognitively disabled students.

4. While attending [School], [Student] has had an aide at his side throughout the entire school day.

5. [Student] has severe dyspraxia which greatly impairs his ability to motor plan.

6. Each week, [Student] receives one-hour of private occupational therapy. He does not receive individualized occupational therapy sessions at [School]. His occupational therapy needs are instead being met within the classroom in consultation with the District's occupational therapist.

7. [Student] has a severe expressive and communication disorder. He receives two, individualized thirty (30) minute sessions of speech therapy each week at [School]. He also receives a forty (40) minute weekly group session. In addition, [Student] attends private speech therapy each week for approximately two hours.

8. [Student] has been provided with some assistive technology at [School]. In August of 1998, the District prepared a partial assessment report of his assistive technology needs.

9. [Student] did not receive special education services during the Summer of 1998.

10. [Unnamed] School ([Unnamed]) has a student population of approximately one hundred-sixty (160). Both the elementary school (Grades K-6) and the junior high school (Grades 7 & 8) are contained within the same building. [Unnamed School District] contracts with the [County] County Children With Disabilities Education Board for its special education services.

1. The [Unnamed] School District failed to provide [Student] with a free and appropriate public education in the least restrictive environment contrary to the Individuals With Disabilities Education Act and Chapter 115, Wis. Stats.

2. The [Unnamed] School District failed to provide [Student] with the appropriate related services contrary to the Individuals With Disabilities Education Act and Chapter 115, Wis. Stats.

NOW THEREFORE IT IS HEREBY ORDERED that within the next eight (8) weeks [Student] be placed in the [Unnamed] School District full-time with a full-time one-to-one aide.

IT IS FURTHER ORDERED that the District staff and the full-time aide(s) be trained by a consultant experienced in teaching autistic students.

IT IS FURTHER ORDERED that [Student] be provided with an additional hour of speech therapy per week and direct occupational therapy.

IT IS FURTHER ORDERED that the District complete and implement its assistive technology plan for [Student].

The [Parents] maintain that [Student]'s placement at [School] School is not the least restrictive environment (LRE) for him. They further maintain that [Student] was not provided with the appropriate and necessary services at [School], including occupational therapy, speech therapy, assistive technology, and a full-time one-to-one aide. Finally, the [Parents] assert that [Student] was unfairly denied an extended school year during the Summer of 1998. Each of these claims will be addressed in turn.

The Individuals With Disabilities Education Act (IDEA) requires that students with disabilities be educated with their regular education peers to the maximum extent appropriate. The IDEA requires school districts to ensure that:

[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. §1415 (5) (A). Consequently, both the IDEA and the case law interpreting the IDEA give strong preference to mainstreaming students with disabilities into the regular education environment. Monticello School Dist. No. 25 v. George L. 102 F.3d 895, 906 (7th Cir. 1996) (citations omitted).

In addition, school districts are responsible for offering a continuum of placement options so that children with disabilities can receive services within the least restrictive environment. 34 C.F.R. §300.550 (b). Accordingly, there is no universally appropriate placement; each placement determination must be based on the individual needs of each child.

There are two different tests that the federal courts use to determine whether a school district has met the requirement of placing a child in the least restrictive environment (LRE). The first test has two prongs: (1) It seeks to determine whether education in the regular classroom, with the use of supplemental aids and services can be achieved satisfactorily; and (2) If it cannot and the school intends to provide special education or to remove the child from regular education, whether the school has mainstreamed the child to the maximum extent appropriate. Monticello at 906, (citations omitted). The second test asks whether the services that make a segregated facility superior could be feasibly provided in a non-segregated facility. Id.

Regardless of which analysis is applied to the facts of this case, the [Unnamed] School District has failed to provide special education services to [Student] in the least restrictive environment. [Student] currently attends a school where every single child has an exceptional education need. In his particular class, [Student] has seven other students, all of whom are cognitively disabled. The District, citing fears that [Student] would be isolated from the other regular education children, if placed at [Unnamed School District], misses the point of mainstreaming. To be sure, not every child is capable of being mainstreamed into a regular education classroom. See Board of Educ. v. Holland 18 IDELR 761, (E.D. Calif. 1992). However, the IDEA's presumption in favor of mainstreaming requires that first consideration be given to placing a child in a regular education classroom with supplemental supports before placing a child in a special education class. Id. Only if the child cannot receive a satisfactory education in a regular education class, even if appropriate support services are offered, should the child be placed in a special education class. Id.

Moreover, underlying the fundamental purpose of the IDEA's mainstreaming requirement is the significant benefits a disabled child may receive from exposure to non-disabled peers. Id. For example, a disabled child may benefit from the positive language and behavioral models provided by non-handicapped peers. In addition, the "[n]onacademic benefits of mainstreaming a child are closely related to the academic benefits. For instance, a child may be better able to learn academic subjects because of improved self-esteem and increased motivation due to placement in regular education." Id.

When mainstreaming a child, consideration may also be given to how disruptive the child will be in a regular education classroom. If the other children in the classroom are disadvantaged by the presence of the disabled child, mainstreaming is not appropriate. Daniel R.R. v. State Board. Of Educ., 874 F.2d 1036 (5th Cir. 1989). However, school districts must utilize supplemental aids and services to accommodate a disabled child's need for additional attention. Only if those steps are ineffective at reducing the disruption may mainstreaming be rejected. Holland at 764.

The [Unnamed] School District does not offer a true continuum of services to its disabled student population. Most of the District's severely disabled students attend [School], a segregated school, while the remainder receive services through the [County] County Children With Disabilities Education Board. In [Student]'s case, there appears to have been very little serious consideration given to placing him at William's Bay. The District cited a variety of reasons for its rejection of [Unnamed School District] including a lack of appropriate staff, concern that [Student] would be disruptive during class, that other children would likely reject him, and that he would have difficulty moving about the building. Although those may be valid concerns, the District has done next to nothing to address them with supplemental supports.

Corrine Donley, an assistant professor of special education at the University of Wisconsin-Oshkosh, testified persuasively that with appropriate support services, including a one-to-one aide, [Student] could successfully be integrated into a regular education classroom. According to Professor Donley, that could easily be accomplished by hiring a consultant who, in turn, could train an aide to provide [Student] with a published sequence of instruction. Such instructional materials could be used in either a regular education classroom or in a self-contained environment and would provide him with a satisfactory education.

Professor Donley also underscored the positive influence that being in an integrated environment would likely have on [Student]'s social skills and his language abilities. She emphasized that because [Student] would be in a setting with regular education students that he would learn to model their appropriate behaviors. That, in turn, is likely to improve his ability to communicate with others, and his behavior in general. At [School], those opportunities do not exist. [Student]'s classroom peers are generally not verbal. They do not hold conversations with one another, nor is the opportunity for spontaneous conversation readily available. In short, he is not able to receive any of the positive benefits that an integrated educational environment affords.

The District expressed great concern over the potential for [Student] to disrupt a regular education classroom. [Student]'s current teacher, Ms. Kies, detailed several strategies that she has employed to reduce his disruptions, including using a modified desk and chair, giving him verbal cues, and utilizing sensory options. Each of those could easily be implemented at [Unnamed School District]. Moreover, under the tutelage of his aide, the classroom teacher would not need to spend an excessive amount of time instructing [Student] alone.

[Student] must therefore be given the opportunity to participate in the regular education environment. In order to ensure that he receives an educational benefit, he must be provided with the necessary supplemental support he needs. The District can no longer exclude him from receiving a mainstreamed education. Instead, it must mainstream him to the maximum extent appropriate as required by the IDEA.

The [Parents] also believe that [Student] has not been provided with the appropriate "related services" in conjunction with his special education. More specifically, they maintain that to benefit from his special education that he needs speech therapy, occupational therapy, and assistive technology. Related services are those developmental, corrective, or supportive services required to assist a handicapped child benefit from special education. 34 C.F.R. 300.16 (a); PI 11.02 (45), Wis. Admin. Code.

[Student] has a severe expressive and receptive language disorder. To address his disorder, [Student] receives two, individualized thirty (30) minute sessions of speech therapy each week at [School]. He also receives a forty (40) minute weekly group session. In addition, [Student] attends private speech therapy each week for approximately two hours. [Student]'s IEP does not focus upon functional speech, which, according to Marie Coakley, a private speech therapist who has a background working with autistic children, is essential. By focussing on functional speech, [Student] would be better able to communicate his wants and needs. It follows that as he acquires more functional speech he will be better able to express himself verbally, rather than physically, which is likely to result in reducing or eliminating much of his negative behavior. Consequently, his IEP should be modified to address his need for functional speech and should also include an additional hour of individual instruction to accommodate that need.

Because [Student] also has severe sensory problems, he has great difficulty moving and interpreting touch. It affects all aspects of his schooling such as his ability to hold a pencil, move around the school building, and participate in physical activities. [Student] presently receives one-hour of private occupational therapy to address those deficiencies. However, he does not receive any individualized occupational therapy sessions at [School]. His occupational therapy needs are instead being met within the classroom in consultation with the District's occupational therapist. But given the extent of [Student]'s disability and the testimony of his current occupational therapist, Janet Breaker, not all of his needs are being appropriately met within the school setting. The testimony of Ms. Breaker revealed that much of [Student]'s occupational therapy is reactive in nature, rather than anticipatory. Because [Student]'s needs are so extensive and because he is likely to obtain an educational benefit from direct occupational therapy, his individualized education plan (IEP) should be modified accordingly.

In August of 1998, the District prepared a partial assessment report of [Student]'s assistive technology needs. To date, however, it has not been completed. Although a variety of assistive technologies are being implemented on [Student]'s behalf, the District needs to complete its assessment and implement any resulting recommendations both in [Student]'s IEP and in the classroom.

The [Parents] also seek compensatory education for [Student] because he was not provided with an extended school year during the Summer of 1998. I am unconvinced that [Student]'s skills regressed to the point where he was unable to recoup them in a reasonable period of time upon his return to school in the fall. Therefore, their request for compensatory education is denied.

The [Unnamed] School District has failed to provide [Student] with a special education in the least restrictive environment. Many of the District's concerns regarding his placement in a regular education environment can and must be addressed first with supplemental aids and services. To date, that has not been done. The District must therefore begin [Student]'s transition into the regular education setting, provide him with the necessary supports, including a trained one-to-one aide(s), additional speech therapy, direct occupational therapy, and the appropriate assistive technology. By placing [Student] in a less restrictive environment he will not only receive academic benefit, but he will also stand to gain significant non-academic benefits such as improved communication skills, improved behavior as well as better socialization.

Dated at Madison, Wisconsin, this 1st day of March, 1999.