Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO:	Mr. Jeffrey A. Schmeckpeper	Ms. Lenore Knudtson
	Kasdorf, Lewis & Swietlik	Knudtson Law Office
	P.O. Box 44200	22595 Akermark
	Milwaukee, WI 54214-7200	Grantsburg, WI 54840

PROCEDURAL HISTORY

On or about September 25, 1998, the [Parents] filed a request for due process hearing on behalf of their son [Student]. The hearing in this matter was held on December 15 and 16, 1998, and completed on January 7, 1999. Attorney Jeffrey A. Schmeckpeper appeared on behalf of the [Unnamed] School District. Attorney Lenore Knudtson appeared on behalf of the [Parents]. Post hearing briefs were filed on February 5 and 15, 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 (District) and is currently a student at Calvin Academy in Roseville, Minnesota.
2. [Student] suffers from dementia, a condition characterized by profound memory deficits. He also has a speech/language disorder and has difficulty transitioning between activities and interacting with his peers. These conditions are chronic and affect [Student] in all of his environments.
3. During the Fall of 1997, [Student] began receiving his language arts instruction in the learning disabilities/emotionally disturbed (ED/LD) resource room. He also received one-to-one assistance during his science class from his special education teacher, Gary Larson.
4. For the 1997-98 school year, [Student] received special education services in the ED/LD resource room for approximately one hour, every other day. [Student] also attended speech therapy twice a week, with each session lasting thirty minutes.
5. With the exception of language arts, [Student] was enrolled in regular education classes during the Fall of 1997. To assist him in those classes the following support services were made available to him: having tests read in the resource room, having texts placed on tape, being given extra time to complete assignments, providing teacher lecture notes, and modifying assignments.
6. During the Fall of 1997, [Student] achieved passing grades in all of his academic classes. He did not attend school in the [Unnamed] School District during the second semester of the 1997-98 school year.
7. Progress reports were sent to the [Parents] during the first semester of the 1997-98 school year indicating [Student]’s academic progress.

1. The [Unnamed] School District developed an appropriate IEP on behalf of [Student] for the 1997-98 school year which was reasonably calculated to provide him with an educational benefit under the Individuals With Disabilities Education Act, 20 U.S.C. §1400, et seq., and Chapter 115, Wis. Stats.
2. During the 1997-98 school year, the [Unnamed] School District provided [Student] with a free and appropriate public education under the Individuals With Disabilities Education Act, 20 U.S.C. §1400, et seq., and Chapter 115, Wis. Stats.

NOW, THEREFORE, IT IS HEREBY ORDERED that the due process matter of [Student] is dismissed.

IT IS FURTHER ORDERED THAT the [Parents] request for tuition reimbursement is hereby denied.

The [Parents] maintain that the [Unnamed] School District failed to address their son’s exceptional education needs in a variety of ways. To begin, they believe that the District misidentified [Student]’s disability when they determined that he had an emotional disability. They also maintain that the District failed to provide an appropriate individualized education plan (IEP) and placement to [Student] during the 1997-98 school year. As a result, the [Parents] believe that [Student] did not make meaningful academic progress during that year. Because the [Parents] do not believe that [Student] was provided with a free and appropriate public education, (FAPE), they are seeking reimbursement for his private school tuition for the 1998-99 school year. Each of these matters will be addressed in turn.

In March of 1996, a multi-disciplinary team (M-team) assessed [Student] to determine both his strengths and weaknesses. With respect to his strengths, the M-team found that [Student] had average academic potential and that his achievement skills were consistently at or slightly below grade level. Regarding his weaknesses, the team noted that [Student] had social delays and an inability to easily shift from one task to another. The team members further found that [Student] displayed anxiety in new situations and during tests, and that he had very slow verbal processing skills. The report also indicated that [Student] had significant delays in his organizational skills, his peer relationships, and in interpreting social situations. Moreover, the report indicated that [Student] often placed undue pressure on himself for perfection and would consequently feel overwhelmed when faced, for instance, with an entire page of problems to complete. The M-team therefore concluded that [Student] had both an emotional and a speech/language disorder.

Norman Cohen, a neuropsychologist, who conducted an educational evaluation of [Student] in June of 1998, and who testified at the due process hearing, confirmed that [Student] had problems with organizational skills, transitioning between activities, interacting with his peers, and was at risk for depression. He further testified that these were both significant and chronic problems for [Student] that affected him in all of his environments.

The criteria for determining whether a child has an emotional disturbance is set forth in s. PI 11.35 (g) 1-7, Wis. Admin. Code. According to s. PI 11.35 (2), an emotional disturbance is characterized as follows:

Under s. 11.35 (3), Wis. Admin. Code, the handicapping condition of emotional disturbance shall be considered only when behaviors are characterized as severe, chronic, or frequent and are manifested in two more of the following areas: school, home, or community. The following behaviors, among others may be indicative of emotional disturbance:

1. An inability to develop or maintain satisfactory interpersonal relationships.
2. Inappropriate affective or behavioral responses to what is considered a normal situational condition.
3. A general pervasive mood of unhappiness, depression or state of anxiety.
4. A tendency to develop physical symptoms, pains or fears associated with personal or school problems.
5. A profound disorder in communication or socially responsive behavior.
6. An inability to learn that cannot be explained by intellectual, sensory or health factors.
7. Extreme withdrawal from social interaction or aggressiveness over an extended period of time.
8. Inappropriate behaviors of such severity and chronicity that the child’s functioning significantly varies from children of similar age, ability, educational experiences and opportunities, and adversely affects the child or others in regular or special education programs.

s. PI 11.35 (g) 3., Wis. Admin. Code. The Wisconsin Administrative Code also notes that the "handicapping condition of emotional disturbance may be the result of other handicapping conditions, such as learning, physical or cognitive disabilities or severe communication problems including speech or language." PI 11.35 (g) 6.

The evidence clearly demonstrates that [Student] fit the criteria of a child with an emotional disturbance. He had continual difficulties interacting with his peers within the school setting and did not appear to have meaningful social interactions with his same-age peers outside of school. Additionally, he had organizational difficulties and verbal processing delays which affected not only his ability to do his school work, but also his ability to communicate and interact with his peers, his parents, and the community at large.

It is undisputed that [Student] suffered an intraventricular hemorrhage at birth which likely resulted in his dementia. As a result of his brain injury, [Student] manifests certain behaviors which are appropriately categorized as emotionally disturbed. Moreover, the Seventh Circuit Court of Appeals, in Heather S. v. State of Wisconsin, 26 IDELR 870 (7^th Cir. App. 1997), has held that the issue of labels is, in effect, beside the point. Instead, the court ruled that "[t]he IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education." Id. at 877.

The United States Supreme Court has set forth a two-prong test to determine whether a school district has provided a child with a free and appropriate public education. The first prong asks whether the school district complied with the procedures as required under the Individuals With Disabilities Education Act? The second prong asks whether the IEP is reasonably calculated to enable the child to receive an educational benefit? Board of Education v. Rowley 458 U.S. 176 (1982).

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. Districts need not furnish every special service necessary to maximize each handicapped child’s potential. Id.

[Student] began seventh grade in the Fall of 1997, at which time his sixth grade IEP was still in effect and had not been modified. According to that IEP, [Student] was to receive special education services in English. However, at the start of seventh grade, he was actually placed in a regular education language arts class. After having been in class for approximately one week, [Student]’s teacher noticed that he was having difficulty. [Student]’s parents were subsequently notified whereupon they verbally agreed to place him in the ED/LD resource room for his language arts instruction. An IEP meeting was convened on September 23, 1997, at which time the change in [Student]’s language arts’ instruction was reflected in his IEP. Later in the semester, Gary Larson, one of [Student]’s special education teachers, began providing direct assistance to [Student] in his science class. However, that additional assistance was not ultimately reflected in [Student]’s 1997-98 IEP. Instead, the [Parents] were informed of [Student]’s progress through progress reports and informal contacts with Mr. Larson.

Technically, the additional assistance that Mr. Larson provided during science class should have been included in [Student]’s IEP. However, I find the District’s error in not including that information in the IEP to have been di minimis in nature. Mr. Larson’s presence did not adversely affect [Student]’s education. On the contrary, according to Michael Grisham, [Student]’s science teacher, once Mr. Larson began assisting during science class, [Student] was able to move from one activity to the next without difficulty, thereby benefiting from the additional assistance. Indeed, one of [Student]’s weaknesses was his inability to transition from task to task. By having the direct assistance of Mr. Larson, one of [Student]’s primary needs was being met.

[Student]’s 1997-98 IEP contained the following three annual goals: passing his classes with a grade of "D" or better; increasing his written language skills to a level commensurate with his grade placement; and increasing or maintaining his language skills. Under each annual goal, short-term objectives were identified. The IEP also set forth a number of different ways in which [Student] may have received assistance in his regular education or "mainstream" classes. For example, his tests could be read to him in the resource room, his texts could be put on tape, teacher lecture notes could be made available to him, his assignments could be modified, or he could be given extra time to complete assignments.

Dr. Cohen noted that it would also be useful for [Student] to have a videotape or audiotape of teacher lectures, access to teacher notes, as well as the opportunity to work one-to-one with teachers. He acknowledged that some of those modifications had been included in the IEP. In fact, [Student]’s IEP includes virtually all of Dr. Cohen’s suggestions. The IEP also provides for speech and language therapy twice a week as well as assistance in the ED/LD resource room approximately every other day. Each of those goals specifically addresses an area of need for [Student]. Additionally, the IEP denotes specific strategies for assisting [Student] in the regular education environment.

Nevertheless, the [Parents] maintain that [Student] did not make meaningful academic progress during the 1997-98 school year. There was lengthy testimony from [Father], [Student]’s father, which suggested that the reason [Student] made any progress was largely due to the considerable amount of time he spent working with his son in the evenings. Although [Father] undoubtedly spent time working with [Student] in the evenings, [Student]’s teachers consistently testified that they typically assigned little or no homework to him. It is therefore difficult to believe that [Student] frequently needed several additional hours of home-based instruction each night. [Father] also testified that he and [Student] often worked ahead in certain subjects. Given that, it is not surprising that he devoted several hours each evening to [Student]’s studies. But simply because [Father] chose to tutor his son does not, in turn, mean that [Student] was failing to make meaningful academic progress while in school. Indeed, the evidence suggests otherwise.

[Student]’s progress was documented by the District through report cards and written progress reports. During the Fall of 1997, [Student] received passing grades in all of his classes. His lowest grade was a "C". [Student]’s achievement tests also indicate that he had been making meaningful academic progress. [Father]’s assistance may well have been helpful to [Student]. However, I reject the notion that it was the sole reason for [Student]’s progress. [Father]’s claim is unsupported by the evidence. Moreover, his assertion implies that [Student] made no meaningful academic gains while in school. Such statements fly in the face of credulity.

The [Parents] also assert that because [Student]’s annual goals were not reviewed prior to his changing schools, that the District did not properly assess his progress. IEPs must be reviewed annually to determine whether the goals and objectives are being met. 34 C.F.R § 300.346 (5) (emphasis added). When [Student] left the District in December of 1997, his annual goals had not been formally reviewed, nor is there any evidence indicating that the [Parents] had requested such a review prior to his departure. [Student] left the District in the middle of the school year. Up to that point, his progress had been measured by report cards and progress reports. Together, they were sufficient measures of his progress. Consequently, there was no reason for the District to review those goals sua sponte.

The District correctly identified [Student] as a child with a disability and subsequently provided him with specialized instruction and services. [Student]’s instruction and the services he received were individually designed to meet his needs and to provide him with an educational benefit. I therefore find that the District has established by a preponderance of the evidence that [Student]’s IEP and placement for the 1997-98 school year were appropriate. Under Florence County School Dist. Four v. Carter, 501 U.S. 7, (1993), if an IEP is found to be deficient and a private school placement is deemed to be "proper" under the IDEA, then reimbursement is appropriate. In this case, [Student]’s IEP was found to have been appropriate, I therefore decline to address whether his placement at Calvin Academy was proper. Because both elements of the Florence test have not been met, reimbursement for [Student]’s private school placement must be denied.

Dated at Madison, Wisconsin, this 19^th day of March, 1999.