FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

On October 22, 1998, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA), from [Parents], parents of [Student]. Pursuant to due notice, a hearing was held on March 3, 1999, in [City], Wisconsin, before Mark J. Kaiser, Administrative Law Judge. At the close of the hearing the parties stipulated to an extension of the deadline for the decision in this matter in order to file post-hearing briefs. The deadline for the issuance of the decision was extended to April 2, 1999. The parties filed simultaneous post-hearing briefs. The briefs were received on March 19, 1999.

The parties to this proceeding are:

[Student], by his parents

[Parents]

[Address]

[Unnamed] School District, by

Gregory Dietz, Director of Special Education, CESA

725 West Park Avenue

Chippewa Falls, WI 54729

FINDINGS OF FACT

1. [Student] ([Student]) is a eight-year old boy, d.o.b. [birthdate]. [Student] is a resident of the [Unnamed] School District (District). He is enrolled in second grade at the [Unnamed School District] School.

2. [Student] has been identified as a child with exceptional educational needs (EEN). He has been determined to have a cognitive disability and a visual impairment. [Student] has been diagnosed with spastic triparesis (right arm spared) secondary to cerebral palsy. He has hydrocephaly (shunted) and probable cortical visual impairment (Exh. D-1).

3. [Student] has limited abilities due to his cognitive disability. On the Wechsler Preschool and Primary Scale of Intelligence-Revised, administered in April 1996, [Student] received a verbal intelligence quotient of 66. During the same testing, adaptive behavior was significantly below average on two measures, the Vineland Adaptive Behavior Scales and Adaptive Behavior Inventory (Exh. D-5). A subsequent evaluation in May 1997, revealed similar results. The multidisciplinary team reporting that [Student]’s "performance in many areas is 50% below age expectancy" (Exh. D-3). On the Battelle Developmental Inventory, at a chronological age of 79 months, [Student] received a cognitive skills score of 47 months, adaptive skills score of 21 months and personal-social skills score of 35 months. (Exh. D-3)

4. [Student] has been receiving special services from the District since he was three years old. Since [Student] has been identified as a child with EEN, the District has developed a series of Individual Educational Programs (IEPs) for him.

5. An annual review of [Student]’s IEP was performed on March 25, 1998, and a new IEP was developed (Exh. D-2). This IEP was implemented on March 26, 1999. Placement was at Glen Flora Elementary School, the school [Student] would have attended as a regular education student.

6. On October 22, 1998, [Parents] (the [Parents]) filed a request for a due process hearing. In the request, the [Parents] identified the nature of the problem [Student] was experiencing as follows:

   Our son has cerebral palsy and [is] in a wheel chair, [he] has been in school since he was 3 years old, but still can not write his name, and he is capable of doing so, if taught properly. He is not receiving basic education, writing, reading and math. He is not receiving the therapy he so needs. We do not agree with the way the school has been handling the IEPs. We have objected to their plans, but were never told about mediation or hearings to settle the problems. Our son has a behavior problem and the school has refused to help in any way. We are presently seeking medical attention to help with his problem.

   For a resolution of the problem, the [Parents] proposed:

   We have had problems with the teachers and aides. We have asked the school for help with counseling or anything to help with behavior problems, but the school denied any help. We have asked for tutoring and that was denied. We have taken back our consent and asked for mediation and a hearing to help solve the problems we are having.

7. After the request for a due process hearing was filed, the [Parents] and the District engaged in mediation. The result of the mediation was a revised IEP. The new IEP is dated January 13, 1999 (Exh. D-1). Despite the revised IEP, the [Parents] were not prepared to withdraw their request for a due process hearing. However, the issues for the hearing were narrowed to the following four issues:
   a) Whether the District has been using [Student]’s medical equipment correctly;

   b) Whether the District has taken appropriate measures to address [Student]’s visual impairment;

   c) Whether [Student]’s academic needs (i.e., reading, writing, and arithmetic) are being appropriately met in the special education classroom; and

   d) Whether the District should provide [Student] with a full-time aide.

8. [Student]’s schedule consists of three periods per day with the regular second grade class. The remainder of his schedule is in the special education classroom or with a related services provider, such as the occupational therapist or physical therapist (Exh. D-17). The special education program provides instruction in reading, math, and spelling through a variety of classes and activities. Reading is provided through direct instruction with the Reading Mastery Program.

9. The spelling instruction [Student] is receiving is related to the reading program. [Student] writes words, but because of his motor difficulties uses an assistive technology device, IntelliKeys, to type the words.

10. In the area of math, [Student]’s special education teacher is working on developing an understanding of concepts, including number recognition, counting, and completing sequences of numbers. Work is also being done on writing numbers and basic operations, particularly addition, at this time.

11. Based on the evidence in the record, the District is appropriately meeting [Student]’s academic needs. The basis of this finding is set forth below.

12. Based on the evidence in the record, the School District has taken appropriate measures to address [Student]’s visual impairment. The basis of this finding is set forth below.

13. Based on the evidence in the record, the School District is using [Student]’s medical equipment correctly. The basis of this finding is set forth below.

14. Based on the evidence in the record, it is unnecessary for the School District to provide a full-time aide for [Student]. The basis of this finding is set forth below.

15. The IEP currently in place for [Student] is appropriate and is reasonably calculated to provide him a free appropriate public education (FAPE). [Student]’s current IEP can be and has been implemented at the [Unnamed School District] School. The [Unnamed School District] School is a newly constructed school and the school [Student] would attend as a regular education student. Placement at the [Unnamed School District] School is an appropriate placement for [Student].

DISCUSSION

[Student]’s parents, [Parents], filed a request for a due-process hearing on October 19, 1998. After the request was filed, the parties engaged in mediation and in January, 1999, a new IEP for [Student] was developed. After the development of the IEP, the [Parents] still had concerns relating to [Student]’s education. After a series of prehearing conferences, the four specific issues listed above were identified as the issues for hearing.

With respect to the first issue, whether the District has been using [Student]’s medical equipment correctly, [Parents] alleged three examples of incorrect or improper uses of [Student]’s medical equipment. The first allegation was that the lifts on [Student]’s wheelchair were not being properly used. The [Parents] alleged that the footrests are supposed to be in the down position so that [Student]’s feet can rest on them and that they should be adjusted so that his legs can be fully extended. The [Parents] testified that this was explained to them by [Student]’s private physical therapist, Doug Litscher.

The District provided the testimony of its physical therapist, Tammy Schemenauer, who testified that the lifts were to be used with the footrests up so as not to restrict the extension of [Student]’s legs. Ms. Schemenauer further testified that she did contact Mr. Litscher who told her he did not know whether [Student] needed the leg lifts at all. Regardless, Mr. Litscher did not tell Ms. Schemenauer that the footrests were to be folded down when the leg lifts were used. At the hearing, the [Parents] failed to provide any support for their allegation that the District was using the wheelchair leg lifts incorrectly. They did not provide the testimony of Doug Litscher or even a letter from him explaining how the leg lifts were to be used. The District provided the testimony of a licensed physical therapist that the District is in fact using the leg lifts correctly.

Not only did the District provide the only expert testimony on this issue, there is no reason to doubt the reliability of this testimony. It costs the District nothing in terms of time, money, or convenience to use the wheelchair leg lifts with the footrests up or down for [Student]. There is no conceivable reason for the District to intentionally use the leg lifts incorrectly. If there is still a misunderstanding related to the use of the leg lifts on [Student]’s wheelchair, a letter or telephone call from Doug Litscher to Tammy Schemenauer would easily remedy the problem. Based on the evidence currently in the record, it appears that the District is using the wheelchair leg lifts correctly.

The [Parents] second allegation related to the use of [Student]’s medical equipment is that the assorted walkers used by [Student] at school are not correctly adjusted to his height. Again the [Parents] provided no expert testimony to support this allegation. The basis of this allegation is primarily that [Student] is wearing out his shoes too rapidly. Again Ms. Schemanauer testified that she believes the District is using the walkers correctly and that the shoe problem is related to [Student]’s gait which, in turn, is a function to his cerebral palsy, not the height adjustment of his walkers. The problems with [Student]’s gait are noted under the heading "Mobility" in the physical therapy evaluation dated May 28, 1997. The report states:

Based on the evidence on the record, there is no basis for finding that the District is not using the walkers correctly.

The third allegation related to the use of [Student]’s medical equipment is that the District is not properly maintaining [Student]’s equipment. The [Parents] described broken brakes and missing screws on [Student]’s wheelchair. The [Parents] cited no authority for their assertion that the District is responsible for maintaining [Student]’s equipment. Ms. Schemenauer testified that as a physical therapist she is not qualified to repair the equipment. She has had persons with such training work on [Student]’s equipment when available.

This allegation, like many of the disputes in this case, appears to be more of a trust and communication problem between the [Parents] and the District than a denial of FAPE. There was no showing that proper adjustment and maintenance of [Student]’s medical equipment is necessary for [Student] to receive educational benefit. Nevertheless, at least at the hearing, the District appeared willing to meet the [Parents] more than half way in terms of keeping [Student]’s equipment properly adjusted and repaired; however, because of past problems, the [Parents] did not appear willing to work with the District personnel in these areas. Rather they simply blame the District for all problems with his medical equipment. For example, in their closing brief, the [Parents] state they are still waiting for a walker that [Student] can use at home, but that the District has been "putting off" obtaining one for [Student]. It is not clear on what basis the District is responsible for obtaining a walker for [Student] to use at home. Logically, it would seem that the [Parents] should seek such equipment through [Student]’s health care providers.

The second issue for the hearing is whether the District has taken appropriate measures to address [Student]’s visual impairment. It is not clear what, if any, additional services the [Parents] believe the District should be providing. The [Parents] complain that [Student] did not receive any services for his visual impairment until January, 1999. However, they admit that they never gave consent for an evaluation of [Student]’s visual impairment. I understand that the [Parents] were upset about the matter in which they were approached for their consent; nevertheless, it is inconsistent for them to complain about the lack of services for [Student]’s visual impairment when they did not consent to having his visual impairment evaluated.

The record contains evidence of [Student]’s visual problems beginning with an Eye Report for Children with Visual Problems dated October 31, 1991 (Exh. D-9) and a Vision Impaired Report dated November 8, 1991 (Exh D-8). The evaluations performed during April and May, 1997, also contain several references to [Student]’s visual problems. For example:

Presumably, based on these references the District had Lane Anthony, a certified teacher for visually impaired students, perform a brief evaluation of [Student] in September, 1998. This evaluation was described by at the hearing by District employees as a "quick peek." The District did not seek consent for an evaluation from the [Parents] until after this "quick peek." The [Parents], upset that they were not asked for consent until after an evaluation had been performed, refused to subsequently give consent for an evaluation. The result of their refusal to give consent was that no services for [Student]’s visual impairment were offered or provided until after another evaluation of [Student]’s visual impairment was performed in January, 1999, and his IEP was revised. It is understandable that the [Parents] were upset that [Student]’s visual impairment had been evaluated without their consent; however, their response to this apparent violation of their rights was irrational. Once it was determined that [Student] had a visual impairment, the [Parents] refusal to sign the consent forms only resulted in delaying the providing of any services to [Student].

As for the District, there is no evidence that the District intentionally violated any of the [Parents]’ rights. It appears that, if anything, there was a misunderstanding related to what consent the [Parents] had given and what consent was needed to perform an evaluation of [Student]’s visual impairment. There is no apparent incentive or conceivable reason for the District to surreptitiously evaluate [Student] just so they can provide additional services to him. The District acted in good faith in an effort to ensure that they were providing educational benefit to [Student]. If in doing so they inadvertently violated the [Parents]’ rights, the remedy for that violation is beyond the scope of this hearing. The bottom line with respect to this issue is that [Student] was properly evaluated for a visual impairment in January, 1999, and his IEP now contains a component for receiving services for his visual impairment. At this time, [Student] is receiving the necessary services for his visual impairment. There is no evidence in the record of any remedial services which could be provided for [Student] to compensate for lack of services for his visual impairment in the past.

The next issue is whether [Student]’s academic needs are being appropriately met in the special education classroom. [Student]’s academic skills are limited. The District presented testimony related to the curriculums they are using for [Student]. The [Parents] presented only their personal opinion that [Student] could learn more. They provided no expert testimony or even personal testimony as to what level they believe [Student] could be at with proper teaching. Conceivably, with the allocation of more resources, [Student] could be further advanced academically. However, the IDEA does not require school districts to maximize the potential of children with EEN. Rather, school districts are only required to provide a floor of opportunity. Rowley v. Bd. Of Education., 458 U.S. 176, at 200-01, (1976). Based on the evidence in the record, the education the District is providing [Student] meets the requirements of the IDEA.

The fourth issue is whether the District should provide [Student] with a full-time aide. This issue appears to be one mainly of semantics and personnel. The District’s witnesses testified that in [Student]’s regular classroom there is a classroom aide whose first priority is assisting [Student]. She is not, however, designated as [Student]’s full-time aide. The [Parents] are asking for a person to be classified as [Student]’s full-time aide; however, they have no problem if that aide assists other children in the classroom when [Student] does not need assistance. As far as I can tell, the classroom aide is providing the services the [Parents] are seeking, she simply does not have the job title of [Student]’s full-time aide.

The [Parents] also want a specific person to be [Student]’s full-time aide, Deb Rhodes. Ms. Rhodes is currently the classroom aide for [Student]’s regular classroom. The District reasonably argues that assigning Ms. Rhodes as [Student]’s full-time aide would result in various personnel problems such as who would act as [Student]’s full-time aide when Ms. Rhodes is ill or on vacation or what would Ms. Rhodes do on days when [Student] was not in school. The District has refused to assign a full-time aide to [Student] partly to avoid these problems. Based on the evidence in the record, [Student] is receiving the assistance he needs when he needs it and there is no reasonable basis for requiring the District to hire a full-time aide for [Student].

More importantly, the [Parents] demand for a full time aid for [Student] is based on a concern for his safety. Although, this concern is understandable, it is also counterproductive. One of the primary goals for [Student] is to increase his independence. Assigning a full time aid to assist him will not make [Student] more independent. A recommendation for [Student] prepared by the Northern Wisconsin Center for the Developmentally Disabled Community Capacity Team notes that "It appears that [Student] has grown quite dependent on adults at school to give him frequent assistance. The teacher’s aid[e], in particular, has been providing [Student] with a great deal of attention and assistance. Obviously, this approach has made [Student] less willing to do things on his own, at least with certain individuals."

The Team then recommends "It would be to [Student]’s advantage, in terms of helping him to become more independent, to gradually back off on the amount of assistance that he is given. It will also be helpful if the adults who work with [Student] gradually increase their distance from [Student], since he seems to have become dependent on having a teacher in close proximity. He should still receive positive attention from his teachers and teacher assistants, but the reinforcing attention should be shifted to times when he does tasks independently or at least makes attempts at doing the task by himself." (Exhibit D-16)

In the same report, under the topic "Normalization," the Team recommends that [Student] "should not have the 1 to 1 attention when he is in the regular classroom, since this again marks him as different from his peers." In short, not only is a full time aide for [Student] not warranted, based upon these recommendations, it would be detrimental to the goal of increasing his independence. Presumably, the school will continue to be responsive to specific safety concerns of the [Parents]; however, this does not require a full time aide be provided for [Student].

After reading the [Parents]’ closing argument, they still appear to have some concerns about the services [Student] is receiving. However, the main theme of their closing argument is that the District ignored their concerns until after they filed a request for a due-process hearing. After the request for hearing was filed, most of their needs were addressed; however, not to their complete satisfaction. The District in turn argues that they provided the services that were necessary and any delays in providing services were caused by a lack of cooperation on the part of the [Parents]. It is beyond the scope of this hearing and would be counter-productive to try to assign blame for the past problems. A lack of trust exists between the [Parents] and the District. However, there does now appear to be in place an IEP which meets [Student]’s needs. Both the [Parents] and the School District appear to sincerely have [Student]’s best interest at heart; hopefully, after this hearing process, the [Parents] and the District can work together for [Student]’s benefit rather than as adversaries.

CONCLUSIONS OF LAW

1. The IEP dated January 13, 1999, developed by the [Unnamed] School District for [Student] is appropriate and is reasonably calculated to provide him a free appropriate public education.

2. The IEP can be implemented at the [Unnamed School District] School and placement at the [Unnamed School District] School is an appropriate placement for him.

3. The [Unnamed] School District has fully implemented the IEP for [Student].

4. The [Unnamed] School District has not denied [Student] a free appropriate public education pursuant to the Individuals with Disabilities Act and chapter 115, Wis. Stats.

5. The [Unnamed] School District is the prevailing party in this matter.

ORDER

IT IS HEREBY ORDERED that the due process hearing request filed by [Parents] on behalf of their son [Student] is dismissed.

Dated at Madison, Wisconsin on April 2, 1999.

NOTICE OF APPEAL