Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

PROCEDURAL HISTORY

On or about August 27, 1998, the [Father & Mother] filed a request for a due process hearing on behalf of their daughter [Student]. The [Father & Mother] are seeking reimbursement for costs incurred in connection with their unilateral placement of [Student] at the Wilson Center, a residential treatment facility located in Minnesota, from September 1997, through March of 1998, and from May 29, 1998, through mid-July, 1998. The hearing in this matter was held on November 19, 1998. Attorneys Michael Aldana and Luis I. Arroyo appeared on behalf of the [Unnamed] School District. Attorney Alf Langan appeared on behalf of the [Father & Mother]. Post hearing briefs were filed on December 31, 1998, and January 19, 1999.

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

FINDINGS OF FACT

1. [Student] (dob xxxxx) was enrolled as a student in the [Unnamed] School District (District) at the outset of the 1997-98 school year.
2. On or about August 21, 1997, [Mother], [Student]’s mother, requested that an exceptional education referral be initiated for [Student]. The District forwarded an "Intent to Refer" and a "Consent for Evaluation" form to [Mother] on August 25, 1997. [Mother] signed the forms and returned them to the District.
3. On September 4, 1997, Debra Karpinski, a counselor at Franklin Middle School, wrote a letter supporting the [Father & Mother]’ decision to seek residential treatment for [Student]. The letter was not an offer of placement.
4. A multidisciplinary team meeting was scheduled for September 16, 1997. [Mother] was unable to attend that meeting, and it was rescheduled to September 23, 1997.
5. [Student] was admitted to the Bellin Psychiatric Center on August 27, 1997. She was released to the custody of her parents on September 9, 1997, and was transferred to the Wilson Center in Faribault, Minnesota, where she remained until she was discharged on March 30, 1998.
6. A multi-disciplinary team convened on September 23, 1997, and concluded that [Student] was a child with a disability and should receive special education services to address her emotional disturbance (ED). During that meeting, [Mother] informed the District staff that [Student] would likely remain at the Wilson Center for approximately six months.
7. Because [Student] was hospitalized at the Wilson Center and was not expected to return to the District until the Spring of 1998, [Mother] signed a "Parental Approval For Extension of Timeline" which extended the time in which to complete [Student]’s evaluation to April 30, 1998.
8. An invitation to an Individualized Education Program (IEP) meeting was sent to the [Father & Mother] on or about March 19, 1998, and an IEP meeting was held on March 27, 1998.
9. On March 27, 1998, an appropriate IEP was developed for [Student]. [Father] and [Mother] agreed to place [Student] at Franklin Middle School where she began receiving services in a program for ED students.
10. On May 28, 1998, [Student] had a verbal altercation with the associate principal at Franklin Middle School.
11. On or about June 6, 1998, [Student] was readmitted to The Wilson Center and remained there for approximately six weeks. She was released in mid-July of 1998.

1. The [Unnamed] School District provided a free and appropriate public education to [Student] during the 1997-98 school year pursuant to the Individuals With Disabilities Education Act and Chapter 115, Wis. Stats.

NOW, THEREFORE, IT IS HEREBY ORDERED that the due process matter of [Student] by her parents, [Mother] and [Father], is dismissed with prejudice.

IT IS FURTHER ORDERED THAT the [Father & Mother]’s request for reimbursement is hereby denied.

At the beginning of the 1997-98 school year, the [Father & Mother] unilaterally elected to place their daughter [Student] at the Wilson Center, a residential treatment facility located in Minnesota. The [Father & Mother] placed her there again in late May of 1998. Because the [Father & Mother] believe that the District failed to provide their daughter with a free and appropriate public education, they are now seeking reimbursement for those placements.

Under the Individuals With Disabilities Education Act (IDEA), school districts are not required to pay the cost of educating a child with a disability at a private school or facility as long as the school district made a free and appropriate public education (FAPE) available to that student. 20 U.S.C. §1412 (a) (10) (c) (i). [Mother] formally requested that [Student] be evaluated for special education on August 21, 1997. The District, in turn, sent [Mother] an "Intent to Refer" and a "Consent for Evaluation" form on August 25, 1997. [Mother] signed the forms and returned them to the District. A multidisciplinary team (M-team) meeting was subsequently scheduled for September 16, 1997. However, [Mother] was unable to attend that meeting, and it was rescheduled to September 23, 1997.

When the [Father & Mother] met with the District staff on September 23, 1997, [Mother] informed them that [Student] was residing at the Wilson Center and would not be returning to the District for approximately six months. Although the M-team concluded that [Student] was a child in need of exceptional education, the development of her IEP was delayed, at [Mother]’s request, until shortly before [Student] was to return to the District. Indeed, [Mother] agreed to that extension in writing.

Wisconsin law requires that a special education evaluation be conducted within ninety (90) days of a referral. See §115.78 (3), Wis. Stats. Additionally, an IEP must be developed within thirty (30) days of a finding of eligibility for special education. See 34 C.F.R. 300.343. The District completed its evaluations of [Student] within thirty days of her referral. Although the District was fully prepared to develop an IEP for her, its development was delayed, at [Mother]’s request and with her permission, until [Student] returned from the Wilson Center.

Much reliance has been placed by the [Father & Mother] on the letter Debra Karpinski wrote in September of 1997, at the [Father & Mother]’s request. The [Father & Mother] maintain that Ms. Karpinski’s letter is tantamount to a binding agreement by the District to place [Student] at the Wilson Center. Their argument is not convincing. To begin, at the time Ms. Karpinski wrote that letter, the District had not yet completed its evaluation of [Student] and had therefore not determined whether she was eligible for special education under the IDEA. In addition, even if she had been eligible at that point, Ms. Karpinski had no authority to authorize [Student]’s placement anywhere, let alone at the Wilson Center. Placement determinations are made by the whole M-team, not by one individual. See 20 U.S.C. §1414; §115.80, Wis. Stats. Moreover, the purpose of the letter, according to both Ms. Karpinski and [Mother], was to help secure insurance funding for [Student]’s stay at the Wilson Center, not to determine her special education placement status.

The [Father & Mother] further argue that the District is liable for the cost of [Student]’s placement at the Wilson Center because it failed to meet her needs during the 1996-97 school year. Because the 1996-97 school year was not at issue in this hearing, I decline to address it here. The [Father & Mother] also maintain that because no one voiced an objection at the M-team meeting to [Student]’s continued placement at the Wilson Center, the District had implicitly consented to it. Their claim is without merit.

There is little doubt that [Student] was experiencing difficulty in both her home and in the community prior to her parents placing her at the Wilson Center. However, there is no evidence which suggests that the M-team participants thought that it was educationally necessary to place her in such a restrictive setting. Indeed, the primary reason the M-team did not discuss placement was because the [Father & Mother] had already made a unilateral decision to temporarily remove [Student] from the District. Moreover, the [Father & Mother] consented to delaying the development of [Student]’s IEP and placement until she returned to [City]. Even if, arguendo, the District had considered placement, it would have been obligated to offer [Student] an education in the least restrictive environment. See 20 U.S.C. §1412 (5). The Wilson Center is a private residential psychiatric facility. As such, it is undeniably one of the most restrictive settings in which to place a child, and clearly not the first option the District would have considered.

To suggest, therefore, that the District did not provide [Student] with a FAPE is manifestly unfair. At the time the [Father & Mother] placed [Student] at the Wilson Center, the District was in the midst of conducting its evaluation of her. Within a month of [Student]’s referral, the District had concluded that she was a child in need of exceptional education. At that point, if her parents had allowed her to remain in the District, an IEP and placement offer would have been developed for her within the next month, if not sooner. Instead, the [Father & Mother] determined that she needed an alternative setting. Accordingly, they agreed to delay the development of her IEP and placement, until she returned to the District. The District did not agree to pay for [Student]’s stay at the Wilson Center; nevertheless, the [Father & Mother] thought it was in the best interests of their daughter that she be admitted there. The fact that the District did not "object" to such a placement during the M-team meeting is immaterial; the special education referral process had not even been completed and placement was not yet being considered. Consequently, the District was in no position to object to or agree with a unilateral placement determination made by the [Father & Mother].

Furthermore, there is insufficient evidence to support a finding that an out-of-state residential treatment facility was necessary for [Student]. Although [Student]’s behavior outside of school was decidedly problematic, she was not exhibiting extreme behaviors in school. To be sure, her in-school behaviors were not considered severe and would not have resulted in her being educated outside of the District.

Upon [Student]’s return to the District in March of 1998, an IEP was developed and implemented for her. On May 28, 1998, [Student] had a verbal altercation with the assistant principal at Franklin Middle School. Shortly after that incident occurred, she ran away from home. Her whereabouts were discovered on June 5, 1998. The following day, her parents admitted her to the Wilson Center, where she remained until mid-July. The [Father & Mother] contend that the altercation with the assistant principal is indicative of an inappropriate IEP and a denial of a FAPE. They therefore believe that they are entitled to reimbursement for the time [Student] spent at the Wilson Center during the Summer of 1998.

Their request is denied. First, the incident with Assistant Principal Novak, standing alone, is an insufficient basis upon which to find that [Student] was denied a free and appropriate public education. Mr. Novak’s actions were consistent with both [Student]’s IEP and school policy. In addition, the [Father & Mother]’s cite no authority for the proposition that one relatively minor incident justified an out-of-state- placement at a residential treatment facility. Furthermore, an extended school year (ESY) placement is warranted only if an interruption in a child’s education would lead to " significant regression in the child’s developmental level and the regression would be compounded by a limited capacity to recoup the lost skills." In Re Child with Disability 507:384 (SEA, 1985); In Re Child with Disabilities, 21 IDELR 697 (SEA, 1994). In this case, there was no evidence that [Student] was likely to regress academically and be unable to recoup those skills during the following school year.

The [Unnamed] School District has demonstrated that it took the necessary steps to evaluate [Student] and to determine whether she was a child in need of exceptional education. Before the District could complete its evaluation, including an offer of placement, the [Father & Mother] unilaterally placed their daughter in an out-of-state residential facility. In so doing, they effectively prevented the District from providing her with a free and appropriate public education. Accordingly, they are not entitled to reimbursement. They are likewise not entitled to reimbursement for [Student]’s stay at the Wilson Center during the Summer of 1998, because there was no demonstrated need for it.

Dated at Madison, Wisconsin, this 8^th day of February, 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.