Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

DECISION AND ORDER

On April 14, 1999, 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) from the [Unnamed] School District in the matter of [Student]. The district’s hearing request asks that the parents’ refusal to consent to an additional evaluation of [Student] and their refusal to consent to a proposed educational placement and behavior intervention plan be overridden. A prehearing conference was held on April 28, 1999 and the matter was set for a due process hearing. That hearing was held on May 20, 1999. This decision embodies the oral decision rendered at the close of the hearing.

The parties to this proceeding are:

Based on the entire record in this matter and the oral decision given on May 20, 1999, this is the final decision and order of the undersigned Administrative Law Judge.

1. [Student] DOB XXXXX), hereafter referred to as the "student", is enrolled in the third grade at Rocky Branch Elementary School within the [Unnamed] School District. He is a child in need of special education and related services by reason of hearing, speech and language impairments and learning disabilities.
2. The student has a recent history of behavioral problems. The problems have included verbal conflicts with his teachers and other academic and administrative staff, verbal and physical conflicts and confrontations with other students, and the use of threatening and offensive language. As a result of his inappropriate behavior, he has been informally suspended from school on one occasion (near the end of the school day) and formally suspended from school on three other occasions during the current school year. The school has also used a variety of other less restrictive measures to address his behavior. Despite these interventions, his behavior has deteriorated to the point where it now significantly impedes his own learning and that of the other students.
3. The student’s recent behavior includes an inability to develop satisfactory interpersonal relationships, inappropriate behavioral responses to what is otherwise considered a normal situation and aggressive behavior.
4. On March 2, 1999, in response to the student’s recent behavioral problems, the district proposed additional testing to determine the student’s needs for special education. One aspect of this referral involved a specific request to test the student for possible emotional disturbance (ED). The parents refused to consent to this additional testing on March 10, 1999. As a result of the refusal, the additional tests were not conducted.
5. On March 18, 1999 the district proposed a revised Individualized Education Program (IEP) and educational placement for the student. The new IEP included a component for ED services of 150 minutes per week in addition to the student’s other services for hearing, speech, language and learning disabilities. The proposed ED services included time that the student would choose to spend in the ED classroom for recess and academic support, time that the ED staff would consult with his other teachers and time that the student would be "sent to the ED room" for behavioral reasons. (Exhibit # 1, page A23) The IEP also included a proposed behavior intervention plan that included the following first level intervention:

1. The student needs special education and related services for hearing, speech and language impairments and learning disabilities under Wis. Stat. § 115.76 (5) (1997-98) and Wis. Admin. Code § PI 11.35 (2).
2. There are significant reasons to believe that the student also requires special education and related services by reason of emotional disturbance under Wis. Stat. § 115.76 (5) (1997-98) and Wis. Admin. Code § PI 11.35 (2).
3. The parents’ refusal to consent to additional testing to determine the need for special education and related services for emotional disturbance is unreasonable and will deny the student a Free and Appropriate Public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., and Wis. Stat. ch. 115 (1997-98) and should be overridden.
4. Except as noted and discussed below, the IEP, educational placement and behavior intervention plan proposed by the district are reasonable and necessary to provide the student with FAPE as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., and Wis. Stat. ch. 115 (1997-98) and should be implemented over the objection of the parents.
5. The provisions of the proposed IEP, educational placement and behavior intervention plan that require compulsory participation in ED services and compulsory placement in the ED classroom are premature and should not be implemented until the IEP team has had an opportunity to review the results of the additional ED testing, to determine whether the provision of those services is required to provide the student with FAPE and has developed a new IEP.

Every child with a disability is entitled to a Free and Appropriate Public Education (FAPE). See 20 U.S.C. § 1400, et seq., and Wis. Stat. ch. 115 (1997-98). To meet this requirement, a school district may reevaluate a student’s unique educational needs whenever the conditions warrant such action. See 20 U.S.C. § 1414 and Wis. Stat. § 155.782 (1997-98). Before additional testing may be conducted, however, the district must obtain parental consent. Id. The district may seek to override any refusal to grant consent through a due process hearing. See Wis. Stat. § 115.80 (1)(b) (1997-98). The district may use the same due process procedure to override a refusal to consent to an educational placement. Id.

In the present case, the district reasonably suspects that the student needs special education and related services by reason of emotional disturbance. This conclusion flows quite naturally from the events of the recent months and the pattern of misbehavior seen in the student’s interactions with others at school. His behavior has included both physical and verbal aggression as well as inappropriate behavior and language to the point where his conduct significantly impairs his own learning as well as the learning of other students. This behavior fits the benchmarks of an emotional disturbance as defined in Wis. Admin. Code § PI 11.35 (2)(g) and clearly requires additional evaluation. The parents’ argument that the misbehavior is not a manifestation of an emotional disturbance and their fear that additional testing might stigmatize their child is not supported by the record and is an unreasonable view of the facts. Taking the events of the recent year as a whole, therefore, I am satisfied that additional testing for possible emotional disturbance is both reasonable and necessary to ensure that the student is provided FAPE.

The district has tried to address the student’s behavioral problems through a variety of measures and interventions. None of the interventions to date have produced any long-lasting change in the student’s behavior. Without some comprehensive plan of action, it is highly likely that the misbehaviors will continue and that the student’s education, as well as the education of other students in his class, will be significantly impaired. The IEP and related behavior intervention plan developed on March 18, 1999 are a measured response to the situation and, to the extent that they include voluntary participation in ED services, they are a reasonable and appropriate response to the circumstances. The provision of compulsory participation in ED services, however, is premature and is not appropriate at this time. Until the additional testing is complete and the IEP team has an opportunity to assess this new data and revisit the appropriateness of ED services, those services should remain voluntary. This can be accomplished by deleting the language that the student be "sent to the ED room for behavioral reasons" from the proposed IEP (exhibit #1, page A23) and by modifying the behavior intervention plan (exhibit #1, page A25) to provide that any time-outs are to be performed outside of the ED classroom. In all other respects, however, the IEP and behavior intervention plan are reasonable and necessary responses to the student’s behavior and should be implemented as proposed by the district.

FOR THE FOREGOING REASONS, IT IS HEREBY ORDERED that the parents’ refusal to consent to the proposed evaluation is overridden and, except as noted above, that the district is authorized to implement the proposed IEP, educational placement and behavior intervention plan.

Dated at Madison, Wisconsin on May 24, 1999.

APPEAL TO COURT. Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under sec. 115.80 (7), Wis. Stats., or to federal district court pursuant to 20 U.S.C. § 1415 and 34 C.F.R. § 300.511.