Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO:

Ms. JoAnn Hart Melli, Walker, Pease & Ruhly, S.C. P.O. Box 1664 Madison, WI 53701-1664

Ms. [Mother] [address]

PROCEDURAL HISTORY

On or about October 8, 1998, the [Unnamed] School District filed a request for a due process hearing. A prehearing conference was held by telephone on October 19, 1998. Attorney JoAnn Hart appeared on behalf of the District. [Mother] did not appear. The hearing in this matter was held on November 3, 1998. Ms. Hart appeared on behalf of the District. [Mother] failed to appear. On November 2, 1998, [Mother] submitted a letter to the Division of Hearings and Appeals requesting a postponement of the due process hearing. [Mother]'s letter was not reviewed by the undersigned administrative law judge until after the hearing had been held.

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 XXXX) is enrolled as a fourth-grade student at Loganville Elementary School within the [Unnamed] School District (District). His reading skills are at a pre-primer level.

2. On or about September 1, 1998, Mrs. Hineman, [Student]'s classroom teacher, made an exceptional education referral on his behalf.

3. Mrs. Hineman sent a letter to [Mother], [Student]'s mother, on or about September 3, 1998, indicating her concern about [Student]'s reading ability.

4. Patrick McGee, director of pupil services for the [Unnamed] School District, sent a letter to [Mother] on or about September 8, 1998, in which he informed her that [Student] had been referred for exceptional education. He requested that [Mother] sign and return the "Notice of Receipt of Referral and Consent for Evaluation."

5. [Mother] did not sign or return the "Notice of Receipt of Referral and Consent for Evaluation" to the District.

6. Julie Fleming, the District social worker, and Mr. Williams, a District guidance counselor, went to [Mother]'s home on September 15, 1998, for a home visit. During their visit, [Mother] indicated that she would not consent to [Student] being evaluated for exceptional education.

7. During a telephone conversation on September 22, 1998, between Ms. Fleming and [Mother], [Mother] verbally refused consent to evaluate [Student] for special education.

8. The Whitesboro Central School District's Board of Education appointed Garry A. Luke as an Impartial Hearing Officer on May 21, 1996. Mr. Luke presided over the due process hearing involving the Whitesboro School district ( located in Whitesboro, New York) and [Mother] (then known as XXXXXX). The Whitesboro School District requested the due process hearing because [Mother] had refused to allow [Student] to be evaluated for exceptional education.

9. By Order dated October 2, 1996, Mr. Luke determined that there was sufficient evidence to establish that an evaluation of [Student] was necessary and ordered the school district to complete one.

10. Before the Whitesboro School District could go forward with its evaluation, [Student] moved into the Utica City School District located in Utica, New York, in November of 1996. The Utica School District conducted an evaluation of [Student], but was unable to act upon it as [Student] and his family moved out of the school district.

11. In April of 1997, [Student] moved into the Indian River School District located in Calcium, New York. An individualized education plan (IEP) was developed by that district, but was not implemented because [Mother] refused to consent to [Student]'s placement in a special education program. Because of [Mother]'s refusal, the Indian River School District, on or about September 3, 1997, requested an impartial hearing officer be appointed to determine whether [Student]'s placement in a special education program was appropriate. Before the hearing could be convened, [Student] and his mother moved to another school district.

12. In approximately February of 1998, [Student] was enrolled as a student in the Robeson County School District located in North Carolina. School officials in that district attempted to meet with [Mother] to discuss [Student]'s educational needs, but [Mother] did not cooperate with those requests.

13. On or about August 25, 1998, [Mother] registered [Student] for school within the [Unnamed] School District. The District requested a due process hearing on October 8, 1998.

14. [Mother] filed a request for postponement of the current due process proceedings on November 2, 1998. The undersigned administrative law judge did not review [Mother]'s request until after the hearing had been held.

CONCLUSIONS OF LAW

1. The [Unnamed] School District has demonstrated by a preponderance of the evidence that it is necessary to evaluate [Student] without parental consent to determine whether he is a child with a disability under §§ 20 U.S.C. 1414 and 115.782, Wis. Stats.

ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED that the [Unnamed] School District shall conduct an evaluation of [Student] to determine whether he is a child with a disability as defined in the Individuals With Disabilities Education Act and in Chapter 115 of the Wisconsin Statutes.

IT IS FURTHER ORDRED that [Mother]'s request for a postponement of these proceedings is DENIED.

OPINION

[Student] is a fourth-grade student at Loganville Elementary School located within the [Unnamed] School District ([Unnamed] or District). He has been enrolled in the District since August of 1998. Prior to his enrollment in [City], [Student] attended several different schools in New York State and in the State of North Carolina. In each of those districts, [Student] was referred for exceptional education. In spite of the many referrals, [Student] has never been enrolled in a program for students with exceptional education needs because each time a referral was made, [Student]'s mother, [Mother], withheld her permission for a special education evaluation.

The record is replete with examples of [Mother]'s efforts to thwart such evaluations. In May of 1996, for instance, the Whitesboro Central School District's Board of Education requested a due process hearing because [Mother] had refused consent to evaluate [Student] for a handicapping condition. According to the record in that case, [Mother] not only withheld her consent, but also "[i]ntentionally tr[ied] to delay the hearing." See Exhibit 4, p. 3. The due process hearing was originally set for June 7, 1996, but was not actually held until September 18, 1998. During that time, [Student] was ten years old. He could not read and his math skills were weak.

As a result, the Impartial Hearing Officer ordered the Whitesboro School District to conduct an evaluation of [Student] to determine whether he was a child with a handicapping condition under the Individuals With Disabilities Education Act. However, before the evaluation could be completed, [Mother] moved to the Utica City School District in Utica, New York. Acting under the Order of the Impartial Hearing Officer, the Utica School District completed an evaluation of [Student]. Unfortunately, the Utica district was unable to act upon the evaluation because [Mother] moved to the Indian River School District in Calcium, New York.

While in the Indian River district, an individualized educational plan (IEP) was developed for [Student]. The IEP was not implemented, however, because [Mother] refused to consent to [Student]'s placement in a special education program. Because of [Mother] refusal, the Indian River district requested that another impartial hearing officer be appointed to determine whether [Student]'s placement in a special education program was appropriate. Before the hearing could be convened, [Student] and his mother moved to yet another school district.

[Mother] next enrolled [Student] in the Robeson County School District located in North Carolina. While there, school officials attempted to meet with [Mother] to discuss [Student]'s educational needs, but [Mother] did not cooperate with those requests. Standardized test scores provided by [Student]'s school records from North Carolina reveal that he was in the second percentile for reading and the fifth percentile for math, both of which indicate extremely low achievement levels.

In August of 1998, [Mother] enrolled [Student] in the [Unnamed] School District. Within the first two weeks of school, [Student]'s classroom teacher, Mrs. Hineman, referred him for a special education evaluation. Mrs. Hineman noted in her referral form that [Student] was still at a beginning reading level although he was nearly twelve years old. In addition, she noted that he had difficulty working independently in any subject because of his low reading ability. Mrs. Halvensleben, the Title I teacher within the [Unnamed] district, also noted in a memo dated October 20, 1998, that [Student] was at the "emergent stage" of reading, which is typical of a student in the first grade. See Exhibit 33. Furthermore, school staff have also noted that [Student] has recently demonstrated behavioral difficulties during unstructured times and that he requires close supervision.

Because of [Student]'s apparent reading deficits and related problems, a Notice of Receipt of Referral and Consent for Evaluation was sent to [Mother] in September of 1998. [Mother] did not sign the consent form and reiterated her intention not to sign it to Julie Fleming, the District's social worker, on at least two separate occasions.

The first step a school district must take in making a recommendation for special education services is to conduct an individual evaluation of a child's educational needs. See 20 U.S.C. § 1414 and §115.782, Wis. Stats. Before the evaluation can occur, a district must obtain parental consent. Id. If the child's parents do not consent to the evaluation, the district may pursue an evaluation through due process procedures. Id. Based on [Student]'s lack of academic achievement, as demonstrated by his inability to read and his poor math skills, his classroom teacher made a legitimate referral for a special education evaluation. Multiple attempts were made by District personnel to obtain [Mother]'s consent to evaluate [Student] in order to determine whether he is a child with exceptional education needs. Indeed, given [Student]'s severe deficits in reading and mathematics, the District had an affirmative obligation to evaluate him for exceptional education. Moreover, the District was aware of several other school districts' efforts to obtain special education services for [Student]. Accordingly, the District has established by a preponderance of the evidence that [Student] should be evaluated to determine whether he is a child with a disability as defined in the IDEA. [Mother]'s lack of consent to evaluate her son is therefore overridden.

[Mother]'s postponement request dated November 2, 1998, was untimely filed. As the record indicates, [Mother] has made repeated requests in the past to delay due process proceedings. Such dilatory tactics are unacceptable and shall not be tolerated as a means to further delay [Student]'s badly needed exceptional education evaluation.

Dated at Madison, Wisconsin, this 16th day of November, 1998.

NOTICE OF APPEAL