In the Matter of [Student] v. [Unnamed] School District

Case No.: LEA-98-054

On October 9, 1998 the Department of Public Instruction received a request for a due process hearing under Wis. Stat. ch. 115 (1997-98) and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., requesting reimbursement for the cost of [Student]'s enrollment in a private school for the 1997-98 and 1998-99 school years. Prehearing conferences were held on October 19, 1998, November 9, 1998, November 23, 1998, December 4, 1998, January 12, 1999 and January 20, 1999. The hearing was conducted on March 16 and 17, 1999. At the request of both parties, the date for the issuance of a final decision was extended to May 31, 1999.

Based on the entire record and arguments in this case, this is the final decision and order of the undersigned Administrative Law Judge.

1. [Student] (student) is a child in need of special education and related services by reason of speech and language impairments and learning disabilities and has, at all times relevant to this action, resided within the [Unnamed] School District (district).
2. On February 12, 1997 the student’s mother, wrote to the school psychologist at Shorewood Elementary School, the student’s public school, and asked that the student be evaluated for special educational needs.
3. A formal referral for evaluation was prepared by the district on April 4, 1997 and, after receiving consent from the parents, an M-Team was assigned to evaluate the student’s needs for special education. The M-Team report was prepared and was discussed on May 27, 1997. The M-Team concluded that the student had speech and language impairments and a learning disability and recommended placement in special education. The M-Team also found that the student would likely need occupational and physical therapy in order to benefit from special education. The student’s parents attended the M-Team meeting and did not dispute its findings and recommendations.
4. Following the M-Team meeting, the parents received a request to attend an Individualized Education Program (IEP) meeting for the 1997-98 school year. That meeting was held with the parents on June 4, 1997. The IEP team discussed the M-Team report and ratified the findings and conclusions of that report. Specifically, the IEP proposed that the student be provided 375 minutes per week of learning disability instruction and 50 minutes per week of direct instruction and consultation in the area of speech and language. The IEP also provided related services for occupational therapy and physical therapy. The parents did not object to the proposed IEP at this meeting.
5. The 1997-98 IEP included an annual goal of increasing the intelligibility of connected speech as well as several short-term instructional objectives. One of the short-term goals included an objective that the student achieve auditory discrimination for several specified speech sounds.
6. The 1997-98 IEP was finalized on June 5, 1997 and was conveyed to the student’s parents.
7. Without advance notice to the district, the parents enrolled the student in the Walbridge Academy, a private school serving students with special educational needs, for summer school in June of 1997.
8. On July 8, 1997 the district mailed the parents a Notice of Intent to Place and Consent for Placement in special education and related services as provided in the proposed 1997-98 IEP. The parents were asked to sign the placement and consent form and return it the school district. Reminder letters were sent to the parents on July 16, 1997 and July 31, 1997. On August 8, 1997 the parents replied and informed the district that they were unwilling to give their consent to the proposed educational placement. They also indicated that they intended to enroll their daughter in Walbridge Academy for the 1997-98 school year. Without the consent or referral of the district, the parents then enrolled their daughter in the private school.
9. The district responded to the parents’ letter on August 25 1997 and notified the parents that they could re-enroll their daughter in the public school at any time and that the district would begin the process of developing her educational program upon her re-entry. Nothing further was heard from the parents until August 10, 1998 when the district received a letter from an attorney representing the parents indicating that the parents intended to re-enroll the student at the private school for the 1998-99 school year at public expense. The parents signed an enrollment agreement with the private school on August 18, 1998 and the student continued her education at the private school. Public school classes began on August 24, 1998.
10. Upon receipt of the August 10, 1998 letter, the district began a process to update the previous IEP. The parents were included in this planning process and provided a great deal of information to the IEP team. The mother attended an IEP meeting on December 14, 1998. She did not object to any of the goals and objectives in the proposed 1998-99 IEP and a new placement notice was sent to the parents on December 17, 1998. It was rejected by the parents on February 2, 1999.
11. During the 1997-98 and 1998-99 school years, the student received instruction at Walbridge Academy, a small private school that provides assistance to students with learning disabilities. The tuition costs were $6,295.00 for the 1997-98 school year (including application and testing fees) and $ 6,195.00 for the 1998-99 school year (including application and testing fees). The IEP developed by the private school for the 1997-98 school year included instruction in reading, spelling, math and written language. It also identified student weakness in written language, handwriting, sequencing of numbers and letters, and auditory and visual problems. The IEP also included occupational therapy and speech and language instruction, although no goals or objectives were provided with regard to speech and language. It made no provision for physical therapy. The IEP developed by the private school for the 1998-99 school year was an extension of the earlier plan with the omission of occupational therapy and speech and language services. As with the earlier plan, the primary instructional methodology was the Orton-Gillingham method of instruction.

1. The Individualized Education Programs and educational placements developed by the [Unnamed] School District for the 1997-98 and 1998-99 school years were reasonably calculated to provide [Student] with an educational benefit and would have provided her a free appropriate public education under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and Wis. Stat. ch.115.
2. The [Unnamed] School District offered to make a free appropriate public education available to [Student] in a timely manner, as required by 20 U.S.C. § 1400, et seq., 34 C.F.R. § 300.403(d)(1) and Wis. Stat. 115.791(2)(1)(a), before the child enrolled in a private school.

The hearing request in this matter was filed on October 9, 1998, over one year after the parents rejected the initial IEP and educational placement offered by the school district. Although Wis. Stat. § 115.80 (1)(a) now contains a one year time limit for the submission of such a due process hearing request, several factors lead me to conclude that the statute does not bar consideration of the current request. First, that time limit was enacted on June 19, 1998, well after the parents rejected the first IEP. See, 1997 Wis. Act 251. Second, the statute contains an express provision that allows a due process request to survive if the district has not provided the parent, or the attorney representing the child, with notice of the time limit. No evidence was presented in this case that such a notice was ever provided to the parents or their attorney. Third, other jurisdictions that have addressed a similar issue on non-statutory grounds have not limited the hearing request to one year. See Bernardsville Board of Education v. J.H., 42 F.3^rd 149 (3^rd Cir. 1994). Finally, this issue was not raised by the district until the submission of written arguments following the close of testimony. Issues of this nature should be raised prior to the hearing. Under all of the circumstances, therefore, I do not find the district’s arguments on the timeliness of the hearing request persuasive and I will address the merits of the parents’ underlying request for tuition reimbursement.

The district also contends that the burden is on the parents to show that the IEPs offered by the district were inappropriate. I disagree. The burden of proof in IDEA cases has been well established over the past ten years and clearly falls on the school district. In Lascari v. Ramapo Indian Hills Regular High Sch. Dist., 116 N.J. 30, 560 A.2d 1189, EHLR 441:565 (1989), for example, the court held:

See also: Richfield Joint Sch. Dist. 1, 18 IDELR 168, 172 (SEA WI 1991) and Jessieville School District, 28 IDELR 697 (SEA AR 1998). Accordingly, I am satisfied that the school district bears the burden of proving that the district offered to provide the student a free appropriate public education.

Both federal and state law give parents the right to recover the cost of a private school enrollment if the public school district did not make a free and appropriate public education (FAPE) available to the child in a timely manner before that enrollment. See, 20 U.S.C. § 1412(a)(10)(C)(i); 34 C.F.R. § 300.403, and Wis. Stat. §115.791. The United States Supreme Court has described the statutory history and purpose of IDEA and the requirement of a free appropriate public education (FAPE) as follows:

On the issue of whether a handicapped child is receiving FAPE, the Supreme Court held:

Applying this test to the current case, I am satisfied that the 1997-98 IEP (Exhibit # 6.) was reasonably calculated to provide the student with an educational benefit and that it offered the student a FAPE. The IEP was an initial placement in special education and included 375 minutes of specialized instruction each week to address the student’s learning disabilities and an additional 50 minutes of specialized instruction to address speech and language issues. The district committed no procedural irregularities in the development of this IEP and the parents did not voice any objections to the proposed IEP until well after the last IEP team meeting and well after the district had mailed the parents a written educational placement based on that IEP. The parents’ concern that the plan failed to address the student’s documented auditory processing problems overlooks the fact that the IEP did include specific speech and language goals to "achieve auditory discrimination" for certain sounds. (Exhibit # 6, page 7.) Auditory discrimination is one part of auditory processing. See, Special Education Dictionary, LRP Publications (1997) at page 22. Taking the 1997-98 IEP as a whole, therefore, I am satisfied that it was a reasonable and appropriate individualized educational program and that it provided the student a FAPE.

Although the parents now claim otherwise, their initial objection to the 1997-98 IEP was primarily a disagreement over instructional methodology. The parents preferred using the Orton-Gillingham methodology as opposed to direct instruction. (Letter of August 8, 1997, Exhibit # 10.) It is well established, however, that parents do not have the right to compel a school district to provide a specific instructional program or employ a specific instructional methodology. See, Lachman v. Illinois State Bd. Of Educ. 852 F.2d 290, 297 (7^th Cir. 1988); Richmond Community Schs., 29 IDELR 443 (SEA IN 1998) and Logue v. Shawnee Mission Pub. Sch., 25 IDELR 587 (1997). Accordingly, I am satisfied that the district offered to provide a free and appropriate public education to this student before the student enrolled in the private school for the start of the 1997-98 school year.

The 1998-99 school year began on August 24, 1998. Just twelve days earlier, the district received a letter from an attorney writing on behalf of the parents. In that letter, the attorney indicated that the parents rejected the placement proposed by the district and indicated that they intended to enroll the student in a private school for the 1998-99 school year at what they believed would be the public expense. Upon receipt of this letter, the district began a process to review and revise the previous IEP. The IEP was completed on December 14, 1998. The revised IEP (Exhibit # 13) increased the proposed special education instruction to 1170 minutes per week for learning disabilities and 75 minutes per week (including consultation) for speech and language. It also contained goals to address auditory discrimination and other reading, speech and language issues. As in the case of the 1997-98 IEP, this IEP was reasonably calculated to provide an educational benefit and to provide a free appropriate public education. The IEP was reject by the parents, however, largely because it was offered during the middle of the school year. The parent’s contend that the delay in the preparation of this IEP denied their daughter a FAPE.

Although Wis. Stat. § 115.787(1) appears to require that a school district have an IEP in effect at the beginning of the school year for each child with a disability that resides within the district, I am persuaded that this requirement does not apply to students who have been unilaterally placed in a private school by their parents. Students who have been unilaterally enrolled in a private school are not entitled a FAPE. See, Letter to McKethan, 29 IDELR 907 (OSEP 1998) and Letter to Rothman, 30 IDELR 269 (OSEP 1998).

It is not surprising, therefore, that some courts have specifically held that a school district is not expressly required to develop and implement, on an annual basis, an IEP for a disabled student once the student has been placed in a private school by his parents. See, Amann v. Stowe Sch. System, 982 F.2d 644, 651 (1^st Cir. 1992) and Carl D. v. Special School of St. Louis County, 28 IDELR 864, 871-872 (E.D. Mo. 1998). This conclusion is also shared by the author of The Answer Book on Special Education Law, second edition (1997), LRP Publications, at ch. 10:13.

Accordingly, I am satisfied that the district was not required to develop and implement, on an annual basis, an IEP for the student after she had been unilaterally placed in the private school by her parents.

Even if I were to conclude that the district was required to have an IEP in effect for this student by the start of the new school year, however, the district’s failure to do so under the facts of this case would not justify reimbursement for the student’s tuition in the private school. As already noted, the district had offered to provide a FAPE to the student before the student enrolled in the private school for the start of the 1997-98 school year. The parents did not reject the district’s proposed placement until August 8, 1997, more than two months after the IEP had been finalized and only days before the start of the school year. The district reasonably assumed after that date that the student would not re-enroll in public school and informed the parents on August 25, 1997, that the district process of developing the student’s appropriate educational program would not begin until she re-entered public school. (Exhibit # 17.) Nothing further was heard from the parents for almost one year, until August 10, 1998, when their attorney wrote the district and stated that the parents were going to again enroll the student in a private school at what they believed would be "the public expense". The student then re-enrolled in the private school on August 18, 1998 (Exhibit # 20, page 4), six days before the start of the 1998-99 public school year. Since the student was already receiving an education from a private school while the district reviewed its obligation to provide FAPE for the 1998-99 school year, the actions of the district did not deprive her of any educational benefit. Taking the evidence as a whole, therefore, I am satisfied that the equities of the case favor the district and that the claim for tuition reimbursement should be denied.

The one remaining issue raised by the parties concerns the appropriateness and sufficiency of the student’s unilateral placement at the private school. Tuition reimbursement is not an appropriate remedy if the private placement itself is not appropriate. See, Florence County Sch. Dist. v. Carter, 510 U.S. 7, 14 (1993). Although this issue is rendered moot by the earlier findings, I will address it for the sake of completeness. Taking the evidence as a whole, I am inclined to believe that the private school placement provided some educational benefit to the student even though the IEPs developed by the private school were not as extensive as the IEPs developed by the district and failed to include a provision for physical therapy. This seems particularly true in light of the testimony that the student’s skills and abilities were increasing, that she was receiving passing grades and that she was progressing from grade-to-grade. All things considered, therefore, I am satisfied that the private placement provided an appropriate education for the student. This factor alone, however, does not justify reimbursement for the cost of that placement.

NOW, THEREFORE, IT IS HEREBY ORDERED that the request for tuition reimbursement is denied and that the due process request of [Student] is dismissed.

Dated at Madison, Wisconsin on May 27, 1999.

NOTICE OF APPEAL RIGHTS