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

Case No.: LEA-99-009

The Parties to this proceeding are:

BACKGROUND

On March 1, 1999, the Wisconsin Department of Public Instruction received a due process hearing request from [father] and [mother] (hereinafter, parents) on behalf of their daughter, [Student] (hereinafter, Student). The Parents maintain that the [Unnamed] School District failed to provide a free appropriate public education (FAPE) by proposing an IEP dated February 24, 1999, that the Student receive educational services in the home when nursing services and the parents are not available to provide these services in school.

The Student is a ten-year-old girl with severe cerebral palsy. She has a gastronomy tube for feedings. Since 1992, the Student has been identified as a child with a disability, pursuant to Chapter 115, Wisconsin Statutes. The Student’s medical condition requires the school district to provide related health care services while she is in the school environment. At the end of the 1998 school year, the Student’s IEP reflected an increase in the amount of health care service for the upcoming school year. The health care services for the Student had been provided by Northland Home Health Services (hereinafter, Northland), for the 1997-1998 school year. Because of the increase of health related services, the [Unnamed] School District (hereinafter, District) decided to hire a full-time school nurse with pediatric experience. The previous healthcare provider, Northland, was to provide training of the school nurse. Initially, the Parents refused to consent to have the school nurse provide health care services for their daughter. Finally, on November 19, 1998, the parents consented to having only the school nurse provide health care services. During this time, the District made extensive efforts to recruit back-up nursing services. This was done without success. When the nurse was not available on January 27, 1999, the Student remained at home. The District reconvened the IEP team in February, 1999. The Team decided that if there was no backup nursing services available, the Student would receive education in her home. The Parent’s would provide the G-Tube feeding. The District maintained that the non-consent by the Parent’s resulted in this IEP modification. The Parents maintain that such a proposal is a denial of FAPE under related services. They also claim that it is their goal to have Northland reestablished as the health care service provider for their daughter.

After the filing of the due process request, the Administrative Law Judge (hereinafter, ALJ) ordered that an independent educational evaluation be conducted to assess the needs and the services provided for this Student.

FINDINGS OF FACT

1. [Student], date of birth, [date], is a child enrolled in the [Unnamed] School District. She is in need of special education. She had severe cerebral palsy, spasticity in all four extremities, eye muscles and oral muscles including her tongue, so that she has grave difficulty with voluntary control of her muscles. (Transcript Vol. 1, page 25).
2. The Student has a gastronomy tube that is used for feedings, as she is unable to take adequate nutrition orally due to her spasticity. (Transcript Vol. 1, page 15).
3. Her medical needs during the school day include physical therapy for the spasticity, and an appropriate feeding protocol, since she was gastronomy tube fed. She has a seizure disorder and needs medication during the school day. She also needs help with personal hygiene (Transcript Vol.1, page 17-18)
4. The satisfactory way of implementing the health care plan for the Student is to have the licensed RN, Jessica Naperella (hereinafter, School Nurse), or substitute backup person trained by her, provide services according to the school health plan (Transcript Vol. 1, pages 22-29).
5. It is not necessary to have a RN providing backup services for the Student. But if the backup provider was not a nurse, it would have to be a provider able to evaluate the type of feeding that was appropriate for the Student. (Transcript Vol.1, page 23).
6. There needs to be an agreement between the District and the Parents as to who a backup provider might be. This needs to be done well in advance of any absence by the school nurse, (Transcript Vol.1, page 27-28). If the Parents don’t agree to the backup nurse trained by the school nurse, it would be difficult for the Student to remain in the school setting (Transcript Vol. 1, pages 28-29).
7. Three modes of communication should be utilized between the District, Parents and the health care providers: an ongoing notebook, updated medical records, and direct weekly contact with the Parent. Communication needs to flow both ways, and the school needs to know what happened at home, as much as the Parents need to know what happened at school, (Transcript Vol. 1, pages 31-34). It is also appropriate for the Doctor to contact the school nurse professionally, (Transcript Vol. 1, page 33-34). This means that the school nurse would have complete copies of all doctor consults and orders, (Transcript Vol.1, page 35).
8. Someone other than a RN can administer medication to the Student, (Transcript Vol. 1, page 42).
9. The ultimate line of responsibility in determining the RN duties are within the orders developed by a doctor, coupled with the judgement of an RN, (Transcript Vol. 1, page 53). The Parents have the right to refuse a specific treatment for their child if ordered by a physician, but the doctor must then inform them about the consequences of that decision. (Transcript Vol. 1, page 51).
10. In the 1998-1999 IEP developed on 6/4/98, the District decided to employ a school nurse to provide health care services for the Student. Previously the District contracted with Northland (Transcript Vol. 1, page 74). Northland arranged for training and consultation with the newly hired school nurse from August 25, to November 25, 1998.
11. Efforts to provide backup nursing in the event that the school nurse was not available began in Spring, 1998. The District contacted the [City] Care Center as well as private recruitment. At the beginning of the 1998-1999 school year, three private nurses expressed interest in the backup nursing position. When these contacts were unsuccessful, the District contacted the Marquette County Health Services, Waushara County Health Services, United Cerebral Palsy in Fox Valley, and REM Health Services. These contacts were unsuccessful (Transcript Vol.1, page 81-85). In December, 1998, when no success with backup agencies was made, Ms. Joan Simons sent out letter requests to 120 nurses. In the second week of January, 1999, it was discovered that the school nurse needed a personal business day on January 27, 1999, to attend a DPI conference. Ms. Simons contacted nursing services in Marquette, Waushara, Green Lake and Adams Counties, in search of a backup. There was still ongoing contact with other agencies, including United Home Health Services.
12. On January 14, 1999, Caregivers in Oshkosh, agreed to do backup nursing. These required two days of training prior to providing backup for the school nurse on January 27, 1999. The Parents were notified of this arrangement through correspondence dated January 15, 1999. The Parents would not give permission to this plan for the training for the nurses to provide backup. They independently contacted Caregivers with concerns about the school nurse’s ability to train them. (Transcript Vol. 1, pages 94-98). The plan was to train a school nurse on January 19, and January 20, 1999, for service on January 27, 1999, (Transcript Vol. 1, page 92).
13. Prior to February, 1999, the IEP of the Student did not address contingencies that would be implemented if health care services were not available at school (Transcript Vol. 1, page 103).
14. When Caregivers did not get the Parents permission, they did not send a nurse to train on January 19, or 20, 1999, (Transcript Vol. 1, pages 122-124). Caregivers was ready, and willing and had signed a contract, (Exhibit A).
15. On January 19, 1999, the Mother refused to have Caregivers trained by the school nurse, claiming the school nurse incompetent. She wanted training by Northland Home Health Care, (Transcript Vol. 1, pages 142-143). The Mother called on February 9, 1999, and gave permission for training, but indicated that training must be done in the home, not at school (Transcript Vol. 1, page 144).
16. The Student did not attend school on January 27, 1999, due to the unavailability of a school nurse and backup services.
17. An IEP meeting was held on February 9, 1999, to discuss the school situation regarding the Student in the event that there was no backup service for the school nurse (Transcript Vol. 1, page 154).
18. The reason for not having backup services was due to the lack of permission by the Parents to allow the District to obtain nursing services. This is required by most nursing agencies. They also did not have the Parents permission to have the school nurse train backup nursing services (Transcript Vol. 1, page 154).
19. The Parents have still refused to allow the school nurse to train backup nurses. The District now has two nurses ready to be trained to provide backup services on an ongoing basis, (Transcript Vol. 1, pages 159-160).
20. In June, 1998, because the Parents were not going to allow the nurse to provide the nursing services in school, the District continued with Northland to provide training for the school nurse so that the student would attend school. (Transcript Vol.2, page 190).
21. The IEP of February 9, 1999, directs that one to one in home instruction will take place on days when the Student must stay home for reasons of no nursing services at school, (Exhibit 13).
22. A G-Tube feeding is an act, which could be delegated by a RN to someone else, (Exhibit 15, and Transcript Vol. 2, page 254).
23. The IEP of February 9, 1999, under "Health Care Services", states "on the days when qualified nursing services or parents are not available for G-Tube feeding, one to one individual instruction will be provided in the home environment for two hours on these days", (Transcript Vol. 2, page 283).
24. Fred Wollenburg, Special Ed. Director, provided the Father with names of two ongoing backup nursing services. The Father would not allow the school nurse to train them. This was again in the Summer, 1998, (Transcript Vol. 2, pages 288-289).
25. The Parent was willing to give the school nurse an opportunity to see if she was qualified, (Transcript Vol. 2, pages 352-353). There was a lot of negative criticism of the school nurse by the parents in the past year (Transcript Vol. 2, page 349).
26. Since the time she was hired by the district, the parents have expressed and maintained that the school nurse was not qualified for to care for their child. This included verbal and written communication to the district and the filing of a complain with the State Board of Nursing (Binder 1998, p. 650, p. 825, p. 829, p. 830, p. 832, p. 833, p. 836, p. 838; Binder 1999, p. 155, p. 313, p. 331). There was no information presented at the hearing to substantiate these complaints that the school nurse was unqualified to care for the child.

27. In correspondence to Fred Wollenburg, dated March 2, 1999, the father of the student maintained that the goal of the due process hearing was to have Northland employed full time at the school again. (Binder 1999, p.177).

ISSUES

1. Did the parents’ behavior and non-consent impede the delivery of the related service plan to the above-named student?
2. Did the District address the lack of parental consent in a timely fashion?

3. Given the circumstances, was the February 9, 1999, IEP appropriate?

4. Should the ALJ retain jurisdiction over this case?

DISCUSSION

Parties will agree that the student is a child with a disability pursuant to Chapter 115, Wis. Stats. She is also entitled to related services because of this designation. The [Unnamed] School District did implement a definitive health care plan for the purpose of carrying out those related services. At the June 4, 1999, IEP meeting, the District indicated their intent to change nursing providers by the use of hiring a full-time school nurse. This full-time employee would replace Northland, who had provided nursing services in the past. The parents were not happy with the change in personnel as to health care providers. It should also be noted that at the June 4, 1998, meeting, the District had proposed a contingency plan of placement for the student if FAPE could not be provided in the school setting. This was due to the strained relationship between the parents and the District (Binder 1998, pp. 557 to 624). This proposed plan was withdrawn due to the objection of the parents. Counsel for the parents indicates that this was not and is not a "parent hostility case" (Transcript Vol. 2, p. 318). Even though the father testified at the due process hearing that the parents were willing to give the new school nurse "a shot" as to being qualified, his testimony contradicts the conduct of he and his wife. His wife had written to the District on August 12, 1998, indicating she would not give the District permission to have the newly hired nurse provide services for her daughter. This prejudgment was made by the parents with no foundation as to their assertions and with a lack of medical background to evaluate appropriate providers. At the parent’s request, the District agreed to retain Northland to provide training services to the nurse through November, 1998.

It is a policy for medical providers to get parental consent before providing services to minors. This allowed the parents to control the decision as to who the providers for their daughter might be. In addition, there is numerous documentation (See: Findings, #26) that the parents, through phone contact and correspondence, sought to have the school nurse removed and Northland re-established as the sole care provider. Once the parents finally agreed to allowing the school nurse to provide care for their child on November 19, 1998, they were adamant that she was unqualified to train anyone else. The school nurse was evaluated by Dr. Robert Judd, who found her competent to care for the child as well as to train others to do so. The parents have also attempted to try to dissuade other agencies (Transcript, Vol. 1, pp. 111-127, 121) from providing care. Their behavior was directly responsible for the creation of the February 9, 1999, IEP. They, in effect, prevented the District from delivering the related services offered to the student, which are mandated by law. While the parents maintain they act out of concern for their daughter, they fail to realize they cannot dictate choices of personnel.

In Dallas School District, 27 IDELR 873, it was held that the regulations do not contain provisions for parents to be able to choose personnel based on personal preference to deliver the programs of special education and related services. This concept, citing Rowley (See: Bd of Educ. of the Hendrick Hudson Central Sch. District v. Rowley, 458 U.S. 176, 189, 102 S. Ct. 3034, 3042 (1982)) was also extended to teaching methods and programs. (See also: Lachman v. the Illinois State Board of Education, 852 F.2d 290, 297 (7th Cir. 1988), 488 U.S. 925, 109 S. Ct. 308,102 L. Ed. 2d 327 (1988)). The goal of the parents was to have Northland reinstated as the full-time nursing provider at the school (See: Findings, #27). By refusing consent, the District was running out of area candidates to provide backup nursing.

The conduct of parents is also an issue that can be considered by the ALJ in a due process hearing. In Roy and Anne A. ex. rel. Matt. A. vs. Valparaiso Community Schools, 25 IDELR 413, it was noted that, "hearing officers are best to assess whether parental attitudes pose a threat to the success of the IEP." Parental hostility is often a relevant factor in determining whether a placement or program can be delivered and can be educationally beneficial. (See: Community Consolidated School District #21 v. The Illinois State Board of Education, 938 F.2d 712 (7th Cir. 1991)). Hearing officers have gone so far as to order changes of placement when the negative feelings of parents have taken on a life of their own and appear little influenced by factual information (See: Greenbush School Committee vs. Mr. And Mrs. K. and J.K., 949 F.Supp. 934 (1996)).

The lack of consent of the parents as to whom would provide nursing services in the event that the school nurse was not available came to an issue in this matter on January 27, 1999, when the nurse attended a DPI conference. Having no providers able to provide backup, the District deemed it unsafe for the child to be at school. On January 22, 1999, an IEP meeting was scheduled for February 9, 1999, to implement a contingency plan of related services for this student. Had there been an agreement to train backup providers in November, 1998, the student would have most likely been in school on January 27, 1999. There would have been no need to modify the IEP in February 9, 1999.

The District had maintained that they, in good faith, began to search for backup nursing services in Spring, 1998 (See: Findings, #11). They were made aware of the ongoing persistence of the parents to have the school nurse removed and would not consent to have her provide services until November 19, 1998. After that date, the parents would still not give permission for the nurse to train backup providers. (See: Findings, #11). When Northland was no longer involved on November 26, 1998, there was no one who could be utilized to substitute for the school nurse. Although the District continued to search for adequate providers, they were still unsuccessful. They "became aware" of the impending absence of the school nurse on January 27, 1999, sometime in the early part of January. The District attempted to make a last minute effort on January 15, 1999 to find a substitute for this nurse. The district did find and enter into an agreement with a provider on this date. The parents refused to sign a consent agreement by January 18, 1999, for training scheduled on January 19 and January 20, 1999. The training was cancelled; the child missed one day of school on January 27, 1999. (Findings, #12, #14, and #16). It has been held that School districts must make adequate plan to provide services even when administrative problems interfere with the provision of these services. (See: Pittsburgh (CA) Unified School Dist. 18 IDLER 362).

The School District indicated that they did an exhaustive search for backup providers in Spring, 1998. They noted the deterioration of the district-parent relationship in the June 4, 1998, IEP meeting. When Northland ended its services in November, 1998, the District put themselves in a precarious situation which resulted in the student being kept home for one day. While they may have hoped to find a backup provider, it would have been more appropriate for the District to have reconvened the IEP at that time and have addressed a contingency plan for health care/nursing services. To do so at the last minute in late January resulted in the student missing school. Dr. Judd also spoke of the need to plan in advance for any modification as to changes in health care services. Even if the parents did object to the contingency plan, there would have been no assertion that the District made a last-minute decision to find a substitute nursing provider. The District did not act in a timely fashion to address a contingency plan for a portion of mandated related services for this student. (Findings, #13). Even if the parents did not agree to the newly proposed plan, the District would have incorporated into an IEP, definitive contingency plan language for related services. This was first done in February, 1999.

Counsel for the parent argues that the whole case revolves around the language of the February 9, 1999 IEP which he deems, "per se illegal." He indicates that, in part:

This is counsel’s issue statement, not the exact wording of the February 9, 1999 IEP. It states, in part:

The District explained how they arrived at the two-hour educational service benchmark. (Transcript, Vol. 1, pp.155, 156, 287). They also maintained that this was a contingency plan which would have provide FAPE for the student in case nursing services were not available for her in the school setting. It provided a placement in the home setting because of safety issues. While the IEP does not reflect the related service plan, there was testimony by Ms. Joan Simons that the parents would be responsible for the task of G-tube feeding on these occasions. Other related services, such as physical therapy, etc. would be made up at a later date. She also indicated that she was sure that this was a situation that would be rarely, if ever, implemented. Since receiving the independent educational evaluation of Dr. Robert Judd, Ms. Simons testified that there may never be a need to implement the contingency plan, since the school nurse would have trained backup providers.

While it is the obligation of the District to provide FAPE, including related services, it is expected that the parents will accept and cooperate, in part, to ensure that these services will be provided and delivered to the student. In the instant case, the District put forth a good faith effort to transition the school's nurse into the proposed 1998-99 IEP. At the request of the parents, they provided training services to the school nurse through Northland, the former provider. Throughout this time, there were arbitrary assertions by the parent that the school nurse was unqualified. No backup training of substitute nursing providers was ever allowed (due to lack of parent consent) to be implemented. The parents had an agenda that was clearly outlined in the father’s letter of March 2, 1999 (Findings, p. 27) to Fred Wollenburg. By default, the parents might end up with a provider of their choice.

Dr. Robert Judd testified that it would not be safe for the student to stay in school without adequate nursing services. A February 9, 1999 IEP discusses a contingency educational plan, but does not delineate a related service plan. The District had no ability to implement certain related services to the student based on the ongoing non-consent of the parents. The District worked extensively to provide backup nursing services; the parents arbitrarily resisted the qualifications of the school nurse to provide backup training or to enlist other providers to be considered for substitute nursing work.

Counsel for the parents indicates that the District is now carving out issues for the ALJ to decide. This decision is not creating issues, it is delineating the issue of qualified health care services, specifically backup nursing services. The February 9, 1999, IEP language may have to be utilized in a remote way if there were circumstances where a backup nurse was not available to do G-tube feeding. The parents’ actions clearly impeded the ability of the District to provide backup nursing services to the student. On June 4, 1998, the District offered an appropriate related service plan for the 1998-99 school year; the parents refused to allow that plan to be fully implemented.

The District never developed a contingency plan for backup nursing services until February 9, 1999. This contingency plan should have been implemented in a more timely fashion once the issue of backup nursing services was identified. The independent educational evaluation by Dr. Judd does provide direction to the District to do just that. He has indicated that the school nurse is qualified to provide services to the student, and qualified to train and delegate others to do various medical tasks to carry out the District’s health care plan. Dr. Judd, however, has emphasized that the most important goal of the District and the parents is to communicate continually and effectively. He outlines a communication protocol (Findings, #7). If there is to be educational benefit for the student, and the parents wish to have her remain in the school setting, effective communication regarding health care issues is mandatory.

It will be part of this order to have the IEP team reconvene within thirty days of the date of this decision to fully implement the independent educational evaluation of Dr. Judd.

It is the duty of an ALJ to "fashion a remedy" and make sure that same is carried out. In the instant case, the directives have been made by Dr. Judd. It is not in the province of the undersigned to "police" recommendations already issued. This ALJ has retained "limited jurisdiction" to ensure that prehearing orders are followed and that there was compliance prior to the due process hearing by both parties. It is the task of the [Unnamed] School District and the parents to revise the IEP with direction from the independent educational evaluation of Dr. Judd and work out a well-developed plan of related services, including contingency language, so that the student can participate fully in her education. This ALJ will not retain jurisdiction, post decision.

1. The parent impeded the ability and refused to consent to backup nursing services plan proposed by the District. This was part of a related service plan for the student under her 1998-1999 IEP. There is no denial of FAPE; any failure to deliver services to the student was a direct result of parents’ actions.
2. The District was not timely in addressing a contingency plan for backup nursing services in the 1998-1999 IEP.
3. The independent educational evaluation of Dr. Judd provides direction to fully implement a plan of health care services and communication regarding the above-named student.
4. It is not necessary for the ALJ to retain jurisdiction in this matter.
5. The District prevailed, in part.

It is hereby ordered that within thirty (30) days of the date of this decision that the IEP team reconvene to modify the health care plan of the above-named student to fully implement the directives of the independent educational evaluation of Dr. Robert Judd. This will include specific provisions for a contingency plan for backup nursing services.

Dated at Madison, Wisconsin on October 8, 1999.