Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On July 15, 1999, 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 [Mother] and [Father], parents of [Student]. A pre-hearing teleconference was held on August 12, 1999. As a result of the teleconference, the district requested for and was granted an extension of the deadline for a decision in this matter until September 22, 1999, with simultaneous post-hearing briefs postmarked by September 8, 1999. Also at the teleconference, the District moved for dismissal of the request for a due process hearing based on three grounds. This motion was denied as to grounds one and three. It was limited and denied as to ground two. A hearing was held on August 24, 1999.

1. [Student] is a eight year old boy, d.o.b. xxxxx. [Student] is a resident of the [Unnamed] School District (District). [Father] and [Mother] are [Student]’s parents and bring this action for their son.
2. [Student] has been identified as a child with exceptional educational needs (EEN) and a child with a disability. 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 visual impairment.
3. The parents of [Student] filed a previous due process hearing request on October 22, 1998. A decision was rendered on April 2, 1999. In that decision, the administrative law judge (ALJ) determined that an arrangement of a specifically named and designated full time aid[e] was unnecessary. The ALJ noted that "[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]." The ALJ upheld the IEP agreed to on January 13, 1999.
4. In the request for a due process hearing at issue, the parents of [Student] alleged that their son had received repeated negligence and abuse and discrimination from the [Unnamed School District] School, teachers, administration, and therapist. In addition, the parents claimed that [Student] was not receiving the weekly therapy and that the parents had not received any vision problem reports as required in the Individualized Education Program (IEP). Finally, they allege a denial of a free and appropriate public education (FAPE).
5. As a remedy, the [Family]’s asserted that the [Unnamed] School District "should have to pay stiff fines and compensation to our son and family for what they have done again and again. Maybe hitting them in the pocketbook will wake them up."

This is the second due process request that the parents of [Student] have submitted this year under an IEP that was sanctioned on January 13, 1999. In this request dated July 13, 1999, the [Family]'s alleged "repeated negligence and abuse and discrimination from the [Unnamed School District] School, teachers, administration, therapist." In the same document, the [Family]'s allege that their "son is not receiving therapy as scheduled on weekly schedule and on his IEP". Mr. and Mrs. [Family] claim that since the District is not providing a full-time aide, [Student] has been neglected and injured more than once at the school. They then claim that because of this treatment, [Student] is not receiving a free and appropriate pubic education.

At the telephone pre-conference the District moved dismissal of the due process hearing request on three grounds summarized as follows:

One of the requirements of a free and appropriate education is that local education conforms to "the standards of the state educational agency (SEA)". 34 CFR 300.13(b). It is easy to imagine proven allegations of "abuse, neglect, negligence and discrimination" plunging through the "floor of opportunity" guaranteed by IDEA. See Hendrick Hudson Dist. Bd. Of Ed. V. Rowley, 458 U.S. 176, 201 (1982). While there are other forums that may be more appropriate for what the [Family]’s are seeking, there can be no doubt that they allege a denial of FAPE. This is exactly the kind of claim that IDEA and its due process requirements were intended to dispatch.

The District also noted that the [Family]’s are seeking monetary relief in their due process request that alleges a denial of FAPE. While the [Family]’s did seek monetary damages in their initial due process hearing request, they did not renew this request at the telephone pre-conference or at the due process hearing. IDEA does not provide for compensatory or punitive damages. Monetary damages are inconsistent with IDEA’s statutory scheme. Charlie F. v. Board of Ed. Of Skokie School Dist. 68, 98 F3d. 1021 (7^th Cir. 1996). See also Sellers v. School Board of Manassas, Virginia 141 F.3d. 524 (1998). Further, ALJ’s are not authorized to award remedies beyond that authorized in IDEA. See Seattle Sch. Dist., 29 IDELR 870; and Bridgeport Bd. Of Educ., 28 IDELR 1043. The District seeks to discharge the [Family]’s denial of FAPE claim because they asked for the wrong remedy. This goes too far. It is up to the ALJ to give content to the FAPE requirement. Rowley at 187. To dismiss a claim because of an incorrect remedy request denies the ALJ an opportunity to fashion an appropriate remedy if needed.

Finally, the District argued that the claims made in the due process request were already made and heard at a hearing on March 3, 1999 in Case # LEA 98-056. That decision was issued on April 2, 1999. This argument was compelling and was used to limit the hearing to evidence that had occurred since March 3, 1999 and to evidence that was required to prove claims not made during the previous hearing. The [Family]'s testified that they were going to appeal that ruling to a circuit court. That is the appropriate avenue and the one directed in sec. 115.80(7) Wis. Stats. To allow one level one ALJ to review another level one ALJ’s decision while working under the same IEP is neither sanctioned nor appropriate.

Although the [Family]’s have stated an actionable claim, they did not provide a preponderance of the evidence to prove a denial of a free and appropriate public education.

The [Family]’s allege two incidents since March 3, 1999. The first incident occurred on May 4, 1999 when [Student] fell off a specially equipped three-wheel cycle. This cycle straps [Student] in with a belt around his chest and midsection. [Student] received a bruise on his elbow.

The parents reported the neglect incident to the Rusk County Sheriff’s Department. The law enforcement agency investigated the allegation and later filed a clear disposition, ending the investigation without charges being filed. The aide responsible for [Student], Ms. Debi Rhoades, testified that she was responsible for [Student] and four or five other children on the playground. She noted that she gave [Student] her primary attention, although at times she can attend to other children as appropriate. She testified that she did not believe that she could have prevented [Student] from turning his bike over. [Student] testified that he flipped his bike.

The parents reported the second incident – an abuse incident -- on June 22, 1999 to the Rusk County Sheriff’s Department. They allege that an employee of the school straightened [Student]’s legs out and subsequently pulled his leg muscles. The employee, Ms. Summer Cody, denied the allegation. Testimony from [Student]’s mother and respite friend note that [Student] was sore the weekend of June 18^th, 1999 and that he was given Tylenol to ease his pain. The sheriff’s office thoroughly researched the allegation and again cleared the disposition.

An additional incident was introduced by the District not as evidence but to support the supposition that the [Family]’s frequently report cases that have no weight. The [Family]’s argued that it showed a continuing mistreatment of their son. It was dated October 6, 1998, before the current IEP was in place and even before the previous due process hearing was requested. No witnesses testified to its authenticity and the case was cleared by the Rusk County Sheriff’s Department.

Based on these two incidents that were offered as evidence, the [Family]’s have not proven their allegation that abuse, discrimination, negligence and neglect have constituted a denial of FAPE. The [Family]’s have not shown that [Student] even missed any school in either incident. Neither incident has been proven with a preponderance of the evidence, nor even if they had, do not show the necessary frequency or injury to warrant a finding of a denial of FAPE.

1. The [Unnamed] School District and its employees did not commit abuse, neglect, negligence or discrimination against [Student]. It provided a free and appropriate public education from March 3, 1999 to August 24, 1999.
2. The [Unnamed] School District is the prevailing party in this matter.

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

Dated at Madison, Wisconsin, this 20^th day of September, 1999.

NOTICE OF APPEAL

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. § 300.512.