1. [Student], (the Student) is an adult with a date of birth of xxxxx, who resides with his parents, [Mother] and [Father], at xxxxx, in [City1], Wisconsin. This residence is served by the [Unnamed] School District (the District).
2. The Student is currently enrolled in the twelfth grade at [Unnamed] High School in [City2], Wisconsin.
3. The Student has been identified as "a child with a disability" within the meaning of state and federal law. The Student requires special education and related services by reason of a disorder known as "global apraxia." "Apraxia" is a disorder of the motor-planning process, impairing a person's ability to plan and execute skilled, non-habitual motor tasks. It is a dysfunction of the central nervous system in processing and integrating sensory information. The Student's apraxia is "global" in that virtually every motor function is affected. As a result, the Student has a reduced ability to coordinate muscle movements. The apraxia does not directly affect the Student’s cognitive functioning, and he has the benefit of normal intelligence. The Student has deficits in fine motor coordination, which adversely affects his ability to use two hands together, dress, write, or draw. The Student is ambulatory and is independent for his basic needs, though he requires some assistance in the areas of dressing and personal care. The Student also displays deficits in processing sensory information; this adversely affects his attention to task, awareness of his environment, and motor planning his body through unfamiliar tasks.
4. The aspect of the global apraxia with the greatest impact on the Student’s educational program is "oral motor apraxia". Oral motor apraxia is an inability to control completely the muscles of the throat and mouth to create speech; it significantly impairs the Student’s ability to articulate clearly. His mother has aptly described it as a "severe communication disorder which affects his every being." The Student has severe deficits in expressive language and intelligibility. (Exh. D, p. 29). There is a significant gap between his receptive communication skills and his expressive communication skills. Children with oral motor apraxia often have severe speech and language delays that adversely affect their achievement in reading and writing. (Exh. B, p. 38). The Student's limited oral and expressive language adversely affects his performance in regular education.
5. The Student generally employs his natural speech as his first mode of communication. Those who regularly communicate with the Student are better able to understand his natural speech than less familiar communication partners, who experience more frequent communication breakdowns. The Student's natural speech intelligibility is also affected by such factors as fatigue, stress, and illness. His efforts to use natural speech can lead to fatigue because he expends considerable mental energy in attempting to form and utter intelligible sounds.

Special Education Services Up to the Summer of 1999

6. The student has long received special education and related services. Before advancing to Nicolet High School, the Student had received special education and related services at Maple Dale Middle School. Among his special education teachers at Maple Dale was Ms. Kristine Orkin. Ms. Orkin first instructed the Student at Maple Dale in 1992. When the Student advanced to high school at Nicolet, Ms. Orkin was hired to work at Nicolet, in large part to provide special education services to the Student in the high school environment.
7. Ms. Orkin functioned as an Assistive Technology teacher at Nicolet, and provided the Student educational services there for three academic years, from 1996 to 1999. She is professionally devoted to the Student, and the Student has come to know and trust her. The Student's parents came to know her well and have reposed great trust and confidence in her and in her ability to provide effective instruction.
8. During the 1998-1999 academic year, a dispute between Ms. Orkin and the District arose regarding aspects of her performance. This dispute culminated in May 1999 with Ms. Orkin's resignation from Nicolet effective the end of the 1998-1999 academic year. The Parents supported Ms. Orkin in her dispute with the District, and were extremely disheartened that she would no longer be instructing [Student] at Nicolet.
9. An important component of the Student's current educational program involves an augmentative communication device (ACD) known commercially as a "Liberator". The Liberator is a voice output communication device that vocalizes words and phrase through an electronically produced "voice". The user selects the voice output by manipulating a 128-key keyboard configured with various pictures, referred to as "icons". The Liberator codes icons to language to produce desired words or phrases according to the specific sequence of icons selected. For example, the icon depicting an apple may be programmed to pertain to words or phrases associated with food. This process of translating icons to speech is called "icon sequencing", and generally involves the selection of up to three icons in a particular sequence to generate a particular word or phrase. The vocabulary and icon-sequences programmed in the Liberator can be customized for a particular user as well as for a particular use, such as prepared oral presentations. The Liberator is a flexible device that operates with different vocabulary programs of varying complexity. In November 1999, new vocabulary software named "Unity" was installed on the Student’s Liberator. The Unity software involves higher concepts and is more difficult to learn. To date the Student continues to require direct instruction on the Unity software; he is less in need of instruction on the mechanical operation of the Liberator.
10. The Student first began to use a Liberator in June 1992. In May 1993, an independent speech language pathologist assessed his level of proficiency with it and concluded that he had much room to develop greater skill. (Exh. A, 270-273). The Student seemed not to understand the Liberator's role in the act of functional communication to repair his oral communications or to use in spontaneous communication. The evaluator recommended that the Student "develop the use of functional independent communication skills" and also "develop expressive language skills using both oral speech and augmented speech".
11. An IEP dated June 9, 1998, was developed for the 1998-1999 academic year at Nicolet. The IEP described the Student still employing the Liberator for limited purposes:

[Student] currently uses verbal speech, computer, [and Liberator] for expressive communication…. The Liberator is currently used solely for storage and retrieval of class reports and specific information. [Student] does not use it [in] spontaneous pragmatic communication or to repair verbal speech.

The Student's measurable annual goal in this area was to "increase his functional use of augmentive [sic] and alternate communication (AAC) systems as well as assistive technology strategies for spontaneous communication."

12. Early in the 1998-1999 academic year, the Parents requested that the IEP be revised to increase the Student's exposure to language and to increase the use of technology in his academic program. As a result, a new IEP was developed in November 1998. This IEP noted: "Improvement with using augmentative communication devices independently to repair oral speech, continues to be a challenge" for the Student. This IEP required for the first time a daily class on augmentative communication and technology, which was in essence a class on the Liberator. The IEP also included an annual goal expressly focused on use of the Liberator: "Using a variety of augmentative and alternative communications systems (AAC), and specifically the … Liberator, [Student] will initiate and maintain spontaneous communication and communication repair in the school setting, at home, and in the community on a daily basis." Almost all of the nine "benchmarks or short-term objectives" specified under this goal involved proficiency in the Liberator.
13. The Parents withdrew the Student from school in early March 1999 following events that caused them reasonably to be concerned about his being preyed upon by another student. The District implemented a new IEP at that time to provide the Student with homebound instruction of 150 minutes per day, comprised of English, computer keyboarding, and the Liberator class. The District designated Ms. Orkin to provide all of this homebound instruction. The provision of speech and language services was suspended under this IEP providing for homebound instruction. The Student did not return to Nicolet until the final two weeks of the school year, having received the homebound instruction for approximately 10 weeks.
14. A triennial evaluation of the Student was performed in May 1999. The evaluation described the Student as having progressed in speech and language, but noted also his continued reluctance to use the Liberator to repair oral messages:

Oral speech has improved over the years…. [Student] can clearly articulate individual phonemes and short phrases and sentences that are comprised of one or two syllable words. As length and complexity of utterances increase, intelligibility decreases. He continues to demonstrate a desire to communicate orally. Although he is more adept at using the Liberator as a communication device, he remains reluctant to use it to repair oral messages during conversational speech….

15. In assessing the Student's present level of academic performance, the May 1999 evaluation parroted the IEP of November 1998 in stating that repair of speech using the Liberator continued to be a "challenge".

IEP Team Meeting of June 10, 1999, and Resulting IEP

16. The IEP team met on June 10, 1999, at the conclusion of the 1998-1999 academic year, to develop the Student's IEP for the 1999-2000 academic year and to develop an extended school year (ESY) program for the summer of 1999. Ms. Orkin was a member of the IEP team, though her tenure at Nicolet was at its end. Ms. Orkin provided the IEP team with material that she and the Parents had developed and which they wished to be incorporated into the IEP. The District adopted an IEP that incorporated these provisions into the IEP without change. These provisions pertained in large part to the assistive technology systems manager, the role Ms. Orkin had filled in the Student's educational program since 1992. These provisions of the IEP provided:

The systems manager will adapt [the Student's] entire curriculum specific to his communication and AT needs.… The systems manager will consult with [the Student's] teachers on a weekly basis and attend his classes at least one time per week to evaluate modifications put in place.

* * * * *

[The Student] needs a systems manager working under the auspices of a speech and language pathology consultant, and with his regular and special education teachers, who understands apraxia and assistive/augmentative communication.

* * * *

[The Student] needs a speech and language pathology consultant who understands apraxia and AAC to work with the systems manager in developing language proficiency using AAC and oral language.

More significantly, the provisions the District incorporated wholly into the IEP also included a description of the competencies that the "assistive technologist systems manager" should have. The Parents considered it important for the IEP to specify these competencies to assure that the new systems manager possess at least the same competencies as Ms. Orkin. The IEP specified the competencies of the systems manager to be as follows:

[The Student] is in need of an assistive technology systems manager who can do the following:

a) Provide direct instruction on the use of the Liberator and Unity software to assist and repair oral and written language and program the Liberator for [the Student's] school participation (i.e. curriculum, social, community, etc.

b) Program and teach the various Liberator toolbox functions (e.g. dictionary, macros, editing, voice inflections, phrasing, notebooks, storage, user areas) for vocabulary specific to [the Student's] curriculum goals.

c) Interface the augmentative communication system (presently the Liberator) with computer and other technologies.

d) Program and implement Macintosh and IBM computer hardware, software, and peripherals specific to [the Student's] needs. (Currently, [the Student] uses both computer platforms, as well as a laptop computer in classes. Software includes ClarisWorks, Microsoft Works, MS Word, Word Perfect, Inspiration, Write: OutLoud, MS Access, and several Internet ISP's and search engines. Peripherals include a printer, mouse, and mouse pad, scanner, and headphones with a tape recorder. Separate disks are used for each course and for homework.

e) Provide a language-based focus throughout [the Student's] curriculum.

f) Make adaptations to [the Student's] environment and modifications to his curriculum which will enable him to participate in all of his classes, work toward independence, and master subject content.

g) Train a paraprofessional in the appropriate assistive technology devices and modifications.

h) Participate in [the Student's] personal hygiene as needed.

i) [The Student] needs the same software installed on his home computer that he uses on his school computers.

17. The IEP required the assistive technology systems manager to be engaged in the Student’s program for a total of 25 class periods per week to "adapt curriculum, tests, communication devices, and language development". It required also a full-time paraprofessional "to implement the curriculum, self-care and safety modifications". The IEP also required monthly "team meetings" for all those involved in providing services to the Student "to review and evaluate curriculum … modifications … to enhance [the Student's] independence with the school environment." Further, the IEP required a "Period of transitioning between the current AT person [Ms. Orkin] and any new qualified staff person that would be hired."
18. The IEP of June 10, 1999, also restated the goals and short-term objectives pertaining to Liberator use first set forth in the November 1998 IEP.
19. The IEP also required an ESY program whose main feature was the provision of forty hours of "Language Maintenance/Liberator training" to occur over a six-week period. One of the stated goals of the ESY program was: "[The Student] will maintain his present level of proficiency with the Liberator." The main purpose of the ESY was to prevent the Student from regressing in his knowledge and use of the Unity vocabulary software. The person designated to provide the Liberator training for the ESY was required to meet the requirements of the "systems manager" set forth in paragraph 16 above. (Tr. 1802).

Attempted Implementation of the 1999 ESY Program

20. As of June 10, 1999, the District had not hired a person to fulfill the role of the systems manager for the ESY program. The District invited Ms. Orkin to apply for the position, and she did. Ms. Orkin was qualified to provide the ESY services required by the IEP and was available and willing to do so at the compensation the District was offering. The District chose not to hire Ms. Orkin to provide the ESY services.
21. On June 21, 1999, the District informed the Student's mother by telephone that it had offered the ESY system manager's position to Ms. Andrea Seekins. The Student's mother wished to know whether Ms. Seekins met the requirements for a systems manager set forth in the IEP, and the District assured her that she did.
22. On June 22, 1999, the District informed the Student's mother by telephone that Ms. Seekins had accepted the ESY position. The District again assured her that Ms. Seekins had the competencies to provide the ESY services, but offered no specifics. In a telephone conversation on June 28, 1999, the parent again asked the District describe Ms. Seekins' credentials reflecting her competencies to serve as the systems manager under the IEP. Again, the District provided only a general assurance that Ms. Seekins was qualified to render the ESY services.
23. In a telephone conversation on June 28, 1999, the Student's mother reiterated her concern regarding Ms. Seekins' ability to provide the ESY services, and again asked about her credentials. The District representative informed the parent that Ms. Seekins was then taking training and that the District believed she would be able to provide the ESY services.
24. In a written response to the Parents' request for information regarding Ms. Seekins' qualifications, the District informed them by letter dated June 29, 1999, that Ms. Seekins' undergraduate degree was in communications, that she was certified in special education, that she was licensed by the state as a CD-LD teacher, that she had been formerly employed by the District and had been highly thought of, and that she had received good references from her prior employer. The Parents were not satisfied that this demonstrated that Ms. Seekins possessed the requisite skills on the Liberator to provide the ESY services.
25. An IEP meeting was held on June 30, 1999, for the purpose of transitioning the Student from Ms. Orkin to the ESY Liberator instructor. The Parents received notice of this meeting by telephone only. Communications between the District and the Parents over the ESY had become testy, and by the time the Parents actually received definite confirmation of the June 30 date for the meeting, both Parents had made other commitments and did not attend the June 30 meeting. Since it was past the time for the ESY program to have started, the District proceeding with the meeting in the absence of the Parents. The transition team developed a transition plan that included the District engaging Ms. Orkin to provide from ten to twenty hours of services to assist in the transition to Ms. Seekins. The team recommended that Ms. Seekins begin providing ESY instruction no later than July 6, 1999, since by that time there were only about six weeks before the new school year was to begin.
26. The District attempted to contact the Parents after the June 30 meeting, but because of the intervening holiday weekend, did not get to speak with a parent until July 5, 1999, when the District advised the father that it wished to begin providing ESY services the next day. The District then learned that the Student was in Chicago with his mother, and that neither he nor his mother would be available until July 12, 1999. The father suggested that the District contact the Student's mother upon her return on July 12, 1999.
27. By letter dated July 8, 1999, the District provided the Parents with additional information regarding Ms. Seekins' credentials, stating that she was receiving training from the manufacturer of the Liberator (the Prentke-Romich Company), that she had spent time with a 22-year old college student to observe his use of the Liberator, and that she had started working with Ms. Orkin to become familiar with the Student's use of the Liberator. The training Ms. Seekins had received was about three hours' instruction over the telephone.
28. Ms. Orkin met with Ms. Seekins on July 6, 1999, as part of the transition plan. At that time, Ms. Seekins demonstrated familiarity with some of the Liberator functions, but was unfamiliar with others, most significantly the Unity vocabulary software. Ms. Orkin was available to provide additional transitional training, but Ms. Seekins did not request any further in-person instruction with Ms. Orkin.
29. The information that the District provided regarding Ms. Seekins' competencies on the Liberator did not satisfy the Parents that she was qualified to provide the ESY instruction. The Parents first notified the District on June 28, 1999, that they were arranging for private instruction for the Student because the District had not developed an ESY program that conformed with the June 10, 1999, IEP. In steady correspondence and telephone conversations throughout the month of July, the District and the Parents remained steadfast in their respective views regarding whether the ESY services that the District was prepared to provide conformed to the IEP.
30. The Parents engaged Ms. Orkin to provide instruction in lieu of the ESY services offered by the District. Over the summer, Ms. Orkin instructed the Student in language training and Liberator use of the type contemplated by the ESY program specified in the IEP. Ms. Orkin charged $35 per hour, a reasonable rate of compensation. She provided more than the 40 hours of instruction, all of it effective toward maintaining the Student's proficiency on the Liberator. (The Student’s proficiency with the Liberator increased over the summer, due in part to the instruction provided by Ms. Orkin beyond that specified under the ESY program, and also as a result of his spending a week in an "immersion" style camp on Liberator use.)
31. Ms. Seekins did not possess the competencies of the systems manager specified in the IEP, either at the time she was hired or on July 6, 1999, after having received telephone training on the Liberator and engaging in other training activities. Further, the District failed to show that Ms. Seekins developed the competencies of the systems manager specified in the IEP within the very limited timeframe that the ESY services were to be provided. (This finding is not in denigration Ms. Seekins' general competency and good faith efforts to achieve the requisite level of proficiency on the Liberator. Rather, it reflects the difficulty of developing the requisite proficiency within shortened timeframe and limited supporting personnel and resources inherent in the ESY program, as well as the somewhat limited Liberator training she received.)
32. There is a substantial likelihood that if the Student had relied solely on the ESY services for "Language Maintenance/Liberator training" that the District was prepared to provide, that his level of proficiency on the Liberator would have regressed over the summer, contrary to the goal of the ESY.

Implementation of 1999-2000 IEP

Transition to the 1999-2000 school year.

33. Another IEP team meeting was held on August 19, 1999, before school was to start on August 23. At this meeting the District introduced Ms. Katie Schlomer, whom the District had recently hired to serve as the Student's systems manager for the upcoming academic year. The IEP team adopted an IEP that was substantially identical to the previous IEP of June 10, 1999. Like the preceding IEP, this IEP also required a "Period of transitioning between the current AT person and any new qualified staff person that would be hired."
34. The IEP team discussed the transition between Ms. Orkin and Ms. Schlomer. There was substantial sentiment for Ms. Orkin to begin working with Ms. Schlomer immediately. The Student's case manager decided, however, to put off any direct transitioning between Ms. Orkin and Ms. Schlomer during the first two weeks of the school year, to allow Ms. Schlomer to become familiar with the Student and to develop a sense of the transitioning needs. The case manager believed that since the Student was returning to an educational environment with numerous teachers with whom he was already familiar, that it was not essential that Ms. Schlomer transition with Ms. Orkin immediately. Over the Parents’ objections, the case manager's approach was implemented, so Ms. Schlomer's transitioning work with Ms. Orkin did not occur at the very beginning of the school year.
35. During the first week of school, the speech language pathologist who had worked with the Student the previous three years spent much time with the Student and Ms. Schlomer, introducing both to the Student's new regular education teachers. During the first two weeks of school, the Student also had frequent contact with his former case manager and also his former physical education teacher. Both served to provide emotional and functional support to him at school’s start. Both were familiar to him as communication partners as well. The first two or three weeks of school proceeded well, with the Student adjusting well to the changes brought by the new school year. Ms. Schlomer worked with the Student on Liberator usage, in such areas as icon sequencing, stating questions, and generating original thoughts. (Tr. 2056).
36. During these first two weeks of school, Ms. Schlomer developed questions about which she wished to consult with Ms. Orkin, pertaining to the Student’s Liberator use, behavioral intervention strategies, and curriculum modifications. The District contracted with Ms. Orkin to provide transitional services for the 1999-2000 school year. She and Ms. Schlomer met on September 3, 1999, and again two or three weeks later. These meetings enabled Ms. Schlomer to become more quickly acquainted with the Student's needs and the role of the systems manager in meeting those needs within his curriculum.
37. In another measure to facilitate her initiation as the Students' assistive technologist, Ms. Schlomer frequently consulted with other faculty members with experience in providing special educational services to the Student. This further enabled her to become more quickly attuned to the Student's needs. The Student missed having Ms. Orkin as his assistive technologist in the school, but he also quickly developed a trusting relationship with Ms. Schlomer.
38. The District used a team approach to the Student's transition, which drew upon the different areas of expertise of various staff members. This better enabled the District to address the Student's complex needs. This approach also made it less likely that the Student would become overly dependent on one particular staff member. (See Exh. D, p. 206). This team approach to the transition was reasonably calculated to allow the District to address the Student's complex needs in making the transition to a new academic year with a new systems manager.
39. The District adequately implemented the period of transition from Ms. Orkin to Ms. Schlomer required by the IEP.
40. On September 2, 1999, the IEP team met again to address further the Student's transition into the academic year. The team adopted an IEP that was identical to the IEP of August 19, 1999 (which in turn was substantially identical to the IEP of June 10, 1999, described above).

 

Ms. Schlomer's Qualifications

41. The District hired Ms. Schlomer to work in a full-time capacity. Sixty percent of her position was that of an assistive technologist teacher and the remaining 40% was as a special education paraprofessional. The bulk of Ms. Schlomer's time was dedicated to providing the Student special education services. Ms. Schlomer was a recent graduate of UW-Madison with an undergraduate degree in occupational therapy. As part of her coursework, she had completed a class in augmentative communication devices (ACD), where she worked with a Liberator as well as a number of other ACD's. Her position at Nicolet was her first full-time teaching job, though she had held several limited time positions in the education field. She holds certifications as an occupational therapist, as a cognitive disability teacher, and as a special education paraprofessional.
42. Before the 1999-2000 school year began, Ms. Schlomer began working with a rental Liberator and some user manuals to prepare for a daylong in-person training session to be provided by a trainer from the Liberator's manufacturer. At this training session on August 20, 1999, Ms. Schlomer displayed a quick understanding and facility with the device and its operating software. By the end of the daylong training, she was able to teach and interact on the Liberator. She found the Liberator to be very "user-friendly" and not difficult to use.
43. The trainer recommended follow-up training for Ms. Schlomer after allowing her time to absorb the material from the initial training session and to work more with the Liberator day to day. In between training sessions, Ms. Schlomer continued to work with the Liberator on her own and also in connection with her regular interactions with the Student. The second day of training was held in October 1999, in which some of the more advanced functions of the Liberator were reviewed with a view to introducing new functions to the Student.
44. By the early part of the school year, Ms. Schlomer possessed sufficient familiarity and proficiency on the Liberator to provide the services set forth in the IEP. She was at least as proficient as the Student in the operation of the Liberator, even though initially she was not as proficient in her memory of the specific icon-sequences to recall a specific word or phrase. The Minspeak Application Program (MAP), however, is relatively easy for a motivated professional to learn. (Ex. A, p. 229). The Student's initial superior proficiency in vocabulary, however, did not substantially hamper Ms. Schlomer's ability to commence providing him services under the IEP. When an expert on the Liberator use and training observed Ms. Schlomer instructing the Student on September 7, 1999, Ms. Schlomer was actively programming vocabulary into the Liberator, and engaging in direct instruction in teaching him that icon-sequencing vocabulary. Further, she was making substantial modifications and adaptations to the Student's curriculum, another competency of the systems manager required by the IEP. Ms. Schlomer developed all the necessary competencies to serve as systems manager within the first few weeks of the school year. During this transitional period, the Student performed well in school due in large part to Ms. Schlomer's industriousness, energy, aptitude, and interest in teaching the Student, as well as the substantial support that she and the Student received from other staff members.

Ms. Schlomer's Performance as Systems Manager

45. The IEP identifies specific competencies of the systems manager, quoted above in paragraph 16 above. There was substantial credible evidence that Ms. Schlomer has competently performed those functions thus far.
46. The IEP requires the systems manager to "Provide direct instruction on the use of the Liberator and Unity software to assist and repair oral and written language and program the Liberator for [the Student's] school participation (i.e. curriculum, social, community, etc." Ms. Schlomer has provided such direct instruction since early in the school year. The evidence that on certain days or times Ms. Schlomer did not provide such direct instruction is insubstantial relative to the totality of the instruction provided (e.g., Tr. 1900-1905, 1947; instructional materials in Exh. I).
47. The IEP also requires the systems manager to "Program and teach the various Liberator toolbox functions (e.g. dictionary, macros, editing, voice inflections, phrasing, notebooks, storage, user areas) for vocabulary specific to [the Student's] curriculum goals." Ms. Schlomer has provided this type of instruction. (Tr. 1906-1917).
48. The IEP also requires the systems manager to "Interface the augmentative communication system (presently the Liberator) with computer and other technologies." Ms. Schlomer was adept at this task and has executed it. (Tr. 1924).
49. The IEP also requires the systems manager to "Program and implement Macintosh and IBM computer hardware, software, and peripherals specific to [the Student's] needs." Ms. Schlomer was adept in the use of the various technologies listed specified in the IEP. (Tr. 1925-1928). The extent to which Ms. Schlomer implemented these technologies "specific to [the Student's] needs" is addressed below in connection with the modifications and adaptations to the Student's curriculum.
50. The IEP requires the systems manager to "Provide a language-based focus throughout [the Student's] curriculum." A "language-based focus" is one that develops a student's vocabulary so that it can be functionally useful to the student in the academic environment as well as other environments. (Tr. 1150). At the high school level, a curriculum with a "language-based focus" centers all subjects on language, even the scientific disciplines. (Tr. 2284). Virtually all of the Student's substantive course work has a language-based focus this academic year. (Tr. 2449). Ms. Schlomer was directly involved in adapting this language-based curriculum for the Student, and in so doing provided a language based focus.

Ms. Schlomer also appropriately involved all other professionals who were providing services to the Student, including a speech language pathologist with training on the Liberator, in discharging her responsibility to provide a language-based focus throughout the Student's curriculum. Ms. Schlomer approached the provision of a language-based focus program through a "team approach". She has organized weekly meetings between herself, the Student’s speech language pathologist, and the Student’s LD language instructor to advance this language based focus. Sometimes the regular education teachers would also participate in these weekly meetings. These meetings have been effective in enabling all instructors and staff, including Ms. Schlomer, to provide a program that was more effectively focused on language. (Tr. 1191, 1935-1936).

The IEP does not require the systems manager be a speech-language pathologist in order to provide a language-based focus. Indeed, the IEP expressly envisions that the systems manager would not be a speech language pathologist -- it provides rather that the systems manager should be "working under the auspices of a speech and language pathology consultant". Ms. Schlomer was competent to participate in providing the Student a language-based focus under the IEP, even though she is not a speech language pathologist. Further, as described above, she and other staff have effectively provided a language-based focus to the curriculum.

51. The IEP required Ms. Schlomer to "Make adaptations to [the Student's] environment and modifications to his curriculum which will enable him to participate in all of his classes, work toward independence, and master subject content." Ms. Schlomer was particularly skilled at adapting the Student's environment to facilitate his participation in the curriculum. This required her to exercise skills very specific to her certification in occupational therapy. She has developed and implemented such environmental adaptations skillfully and effectively.

Ms. Schlomer has also developed modifications to the Student's curriculum, and it is uncontroverted that she has expended considerable effort in doing so. The dispute over the modifications concerns whether they have been effective "to enable [the Student] to participate in all of his classes, work toward independence, and master subject content" as required by the IEP.

Ms. Schlomer has not developed the modifications in isolation, but rather has sought and received the advice and assistance of other knowledgeable staff in seeking to develop effective modifications. (E.g., Tr. 2281). These other educational professionals, all with much more professional experience than Ms. Schlomer and some having greater experience working with the Student, found these modifications to be appropriate to the Student. (Tr. 184-187, 1195, 2280-2283; 2445-2448, 2452).

Nevertheless, not all the modifications that Ms. Schlomer has developed have worked as well as hoped. There is insufficient evidence, however, to support the conclusion that those modifications that have not been entirely successful were inherently deficient or inappropriate. The Student's earlier systems manager did not achieve universal success with her modifications (Tr. 2430), and it would be unrealistic to expect every modification developed by any systems manager to achieve the desired goal. For some coursework, no modifications would enable the Student to work on an assignment without outside assistance. (Tr. 2452). Other modifications may not have been as successful as they would otherwise have been due to high number of absences of the Student this academic year (discussed further below). These absences have hindered introduction of modified material to the Student before he was otherwise exposed to it. Some of the modifications may not have been completely effective simply because the Student may have encountered a particular modification on a relatively low functioning day. Another variable affecting the efficacy of the modifications is that the material in 12th grade regular education courses is more intellectually rigorous than the course work from earlier school years (e.g. Tr. 2466). The variables affecting the Students' performance are simply too numerous to permit a finding that the curriculum modifications were inherently flawed. There is much "art" in designing modifications to achieve their desired goal. It is a "process" that requires continual assessment and adjustment according to the progress of a student and the subject matter involved. (Tr. 2032).

Ms. Schlomer made appropriate modifications to the Student's curriculum that were reasonably designed to enable him to participate in all his classes, work toward independence, and master subject content.

52. The IEP requires the systems manager to "Train a paraprofessional in the appropriate assistive technology devices and modifications." Since Ms. Schlomer served as the Student's special education paraprofessional as well as his assistive technologist, this provision is not applicable.
53. The IEP also requires Ms. Schlomer to "Participate in [the Student's] personal hygiene as needed." There is no challenge to Ms. Schlomer's execution of this competency.

Student’s Progress Toward Annual Goals In The IEP

54. The IEP of September 2, 1999, specifies five measurable annual goals "to enable the student to be involved in and progress in the general curriculum, and to meet other educational needs that result from the student's disability." Substantial evidence was presented pertinent to three of these five goals, all of which involve the Student's communication. (There is no assertion that the District has failed to implement the IEP with respect to the other two goals, which pertain to the Student’s participation in physical education and the improvement of his fine motor coordination.)
55. One of the goals provides as follows: "Increase speech intelligibility in conversational speech strategies and augmentative communication devices independently to improve clarity of intended messages." There are seven "Benchmarks or short-term objectives" identified to indicate progress toward this goal or to meet other educational needs resulting from his disability. A speech language pathologist for the District, Ms. Dianne Swalve, is primarily responsible for providing educational services to enable the Student to make progress toward this goal, but the entire staff is involved, including Ms. Schlomer (Tr. 1940-1942). The District is implementing the IEP in a manner reasonably calculated to enable the Student to make progress on the benchmarks. The Student has been using his natural speech more this academic year, and it has been more understandable. (Tr. 1014). The Student is making measurable progress on many of these benchmarks, and consequently is also making reasonable progress toward the measurable annual goal stated. (Tr. 1172-1186, 1217-1220, 2441-2445, 2466). The Student is receiving an educational benefit from the educational services being provided toward meeting this annual goal.
56. Another of the annual goals provides: "Using a variety of augmentative and alternative communications systems (AAC), and specifically the … Liberator, [Student] will initiate and maintain spontaneous communication and communication repair in the school setting, at home, and in the community on a daily basis." All of the "benchmarks or short-term objectives" specified under this goal involve proficiency in the Liberator:

1) Using the Liberator and Unity software, [Student] will sequence icons to construct sentences, questions, and paragraphs with 85% accuracy in daily class sessions.

2) Using the Liberator, [Student] will keep daily notebooks for each subject area with minimal assistance.

3) Using the Liberator and Unity software, [Student] will implement the various functions of the Minspeak Application Program (MAP) on a daily basis in 2 out of 3 trials.

4) On a daily basis, [Student] will set up and take down his AAC device(s) in each class situation.

When observed by an outside expert on the Liberator early in the school year on September 8 & 17, 1999, Ms. Schlomer was effectively working with the Student in areas designed to make progress on benchmark number one. (Tr. 201). She has continued to do so throughout the school year. (e.g., Tr. 691).

With respect to benchmark two, Ms. Schlomer has developed notebooks for the Student to use in keeping track of vocabulary specific to certain classes. (Tr. 692).

With respect to benchmark number three, Ms. Schlomer has been providing direct instruction reasonably calculated to allow the Student to advance toward implementing different functions of the Minspeak program, such as customizing the icon-sequences for a vocabulary in a specific environment, or using the Liberator in its "spell mode". (Tr. 202, 693-694).

Ms. Schlomer has provided substantial educational services toward benchmark number four. Indeed, among the Parent's complaints regarding Ms. Schlomer's performance is that she focuses unduly on such functional skills at the expense of language-based skills. The fourth benchmark is important, however, in encouraging the Student to use the Liberator and to become accustomed to employing it independently, without prompting. (Tr. 695-696).

The IEP identified that the Student's use of the Liberator to repair his oral speech "continue[d] to be a challenge" to him. In the preceding academic year, he had used it primarily to develop and deliver prepared presentations. (Exh. A 260). Also, at the beginning of the academic year, the Student was not using the Liberator to any significant degree in spontaneous communication (i.e., initiating communication through the Liberator, rather than first seeking to communicate through natural speech). (Tr. 1457, 1945-1947; 2034). In the course of the academic year, the Student has received instruction reasonably calculated to increase use of his Liberator both for speech repair and spontaneous communication. (E.g., Tr. 1179, 1186, 1217, 2120-2122).

The District is providing educational services under the IEP reasonably calculated to enable the Student to make progress toward achieving this measurable annual goal.

57. A third annual goal provides: "Using a variety of Assistive Technology devices and adaptations, [the Student] will achieve average or above average grades in all of his academic classes." Many of the short term objectives identified under this annual goal pertained to the Liberator:

1) Using word-prediction software on a variety of AAC devices, [Student] will write paragraphs using complex sentences and multi-syllabic vocabulary in final drafts of written work

2) Using the computer and spell check program, [Student] will produce daily written assignments with error-free spelling

3) Using the computer, Liberator, their corresponding software applications, and pre-designed AT adaptations, [Student] will complete daily homework assignments independently with 90% accuracy

4) Using AAC devices and accompanying AT adaptations (which are specific to the purpose of each exercise), [Student] will complete in-school tasks

Ms. Schlomer works with the Student on making progress toward all these benchmarks, on her own and in conjunction with other staff members. (Tr. 697-707, 1952-1960). Progress on these benchmarks is facilitating the Student's progress toward achieving average to above average grades in his academic classes. (Tr. 707-709). The District is providing educational services under the IEP reasonably calculated to enable the Student to make progress toward achieving this measurable annual goal.

The Student has been receiving average to above average grades in his academic classes this academic year, thus progressing toward the annual goal. (Exh. D, 239-242). Because the Student's disability requires him to take longer to complete lessons, his grades have been based upon the material that he has been able to complete. (Tr. 2134, 2319). The Student's progress toward this goal of achieving successful grades is attributable primarily to the educational services provided by the District. The Student has also benefited from the additional services that the Parents have provided through the employment of Ms. Orkin to tutor the Student in the home. There is insufficient evidence to support a finding that the services provided by Ms. Orkin are primarily responsible for the Student's academic success. Ms. Orkin has served as a tutor, and also has provided direct instruction that has at least in part compensated for the Student's absences. This year Ms. Orkin has fulfilled in part the role of the home tutor that the Parents had provided the Student in the preceding academic year, when Ms. Orkin was the systems manager. (Tr. 1513).

58. There is insufficient evidence to support a finding that the District has failed to provide special education or related services under the IEP that are reasonably calculated to enable the Student to obtain educational benefits. The difficulties the Student has encountered in his academic courses this year are not the result of deficits in implementation of the IEP.

Through February 7, 2000, the Student had been absent for the entirety of 27 school days for the school year and for substantial parts of several more days. Further, between February 8, 2000, and February 23, 2000, he missed at least several more days due to illness. The District has taken appropriate measures to keep the Student progressing through these absences. Nevertheless, these absences have presented a substantial obstacle to the District's efforts to provide special education and related services required by the IEP. Nevertheless, the District has remained prepared to provide educational services as provided by the IEP.

The Student has a good relationship with Ms. Schlomer, but he has missed having Ms. Orkin as his assistive technologist, a function she had served for the preceding seven years. This change in assistive technologists has contributed to the Student’s struggles this year. A vocal and physical tic that had surfaced from time to time in the past has occurred this year with greater frequency and intensity at home and at school, causing much consternation. [Footnote: After the post-hearing briefs were filed, the District requested that the record be reopened because it understood that the Student had recently been diagnosed with Tourettte's disorder, and that this was relevant to the cause of tics. The Student opposed the request, asserting that the case should be resolved on the existing record. Whether or not the Student's tics are manifestations of Tourette's disorder would be of marginal relevance only and would not materially affect the findings and conclusions set forth herein. The request to reopen the record to receive additional evidence is therefore denied. End of Footnote.]

Nevertheless, the Student's struggles have not been the result of a flawed transition between Ms. Orkin and Ms. Schlomer. Rather, it is not possible to replicate perfectly for Ms. Schlomer or for any qualified person the seven years of personal experience Ms. Orkin had with the Student. In light of Ms. Orkin's substantial background with the Student and in assistive technology in general, she may well have served as the Student's systems manager for the 1999-2000 academic year with better effect than Ms. Schlomer has to date. Even if this is so, the controlling fact is that Ms. Schlomer was qualified to perform as systems manager and has been doing so in conformance with the IEP with impressive skill and commendable dedication and perseverance.

CONCLUSIONS OF LAW

59. A "free appropriate public education" (FAPE) requires tailoring the unique needs of the child by means of an IEP. Board of Education v. Rowley, 458 U.S. 176 (1982).
60. A local education agency (LEA) is required to "[p]rovide special education and related services to a child with a disability in accordance with the child's IEP". 34 C.F.R. §300.350(a)(1). The District bears the burden of demonstrating that it has provided such special education and related services. Madison Metropolitan School District, LEA-98-054 (LEA WI 1999).
61. To show deficient implementation of an IEP requires more than a de minimus failure to implement all the elements of that IEP. Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000). Rather, there must be a failure to implement substantial or significant provisions, such that the educational benefit that the IEP is designed to achieve is significantly or substantially diminished. Id.
62. The District has not met its burden to demonstrate that the instructor it selected to provide the forty hours of Liberator training over a six-week period in the summer possessed, or reasonably would have been able to acquire, the competencies for the systems manager set forth in the IEP. Providing a qualified instructor on the Liberator was a significant and substantial component of the ESY program. The educational benefit that the ESY program was designed to achieve -- maintenance of knowledge and use of the Unity vocabulary on the Liberator over the summer -- would have been significantly and substantially diminished if the Student had proceeded with the ESY program the District proffered. The District’s proffered ESY program denied the Student FAPE.
63. Upon a determination that a private placement, rather than placement under a proposed IEP, is proper, reimbursement for that private placement is permitted. Burlington School Committee v. Massachusetts Dept. of Education, 471 U.S. 359 (1985). Here, the private placement utilized to provide the ESY services was appropriate, so reimbursement may be allowed. See Florence County School District v. Carter, 510 U.S. 7 (1993). Ms. Orkin possessed the competencies of the systems manager set forth in the IEP, and she provided 40 hours of instructional services on the Liberator of the type contemplated by the ESY program. Her rate of compensation of $35 per hour was reasonable. Accordingly, the District should provide reimbursement of $1,400 for the cost of the private placement.
64. Under 34 C.F.R. § 300.403(d)(1), private placement reimbursement "may" be reduced or denied if specified advance notice provisions are not met. In light of the shortened timeframe of the ESY program, it would be unreasonable to reduce or deny private school reimbursement under this discretionary standard.
65. With respect to the implementation of the IEP for the 1999-2000 academic year, the District has met its burden to demonstrate that it has been providing FAPE. The District has been providing special education and related services that have comported with the Student's IEP for the 1999-2000 academic year. Rowley.
66. An LEA is required to "[m]ake a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP." 34 C.F.R. § 300.350(a)(2). The District has been providing special education and related services this academic year in such a good faith effort. These efforts have been reasonably calculated to enable the Student to make progress on the goals and short-term objectives in his IEP, and thus to receive educational benefits from the instruction. Simply because the Student has not made all the progress this academic year that he may have desired does not mean the District has failed to provide appropriate education and services under the IEP. Proper implementation of an IEP does not guarantee a particular level of educational success. See Houston Indep. Sch. Dist. v. Caius R., 30 I.D.E.L.R. 578 (U.S.D.C. Tex. 1998), affirmed, 200 F.3d 341 (5th Cir. 2000).
67. The Student was not denied FAPE simply because his systems manager, Ms. Schlomer, was not initially as knowledgeable as the Student on the Liberator vocabulary. LEA's must implement IEP's as soon as possible following an IEP meeting revising an IEP. 34 C.F.R. § 300.342. This means that implementation should occur without "undue delay". 64 Fed. Reg. 12579. Ms. Schlomer quickly achieved the necessarily facility with the Liberator to begin providing the Student with the services required under the IEP for the balance of the academic year. Unlike the systems manager that the District had selected to provide ESY instruction, Ms. Schlomer was not required to get completely up to speed and to render all the required educational services in a short six-week timeframe. Also, Ms. Schlomer had the substantial and continuous support the entire staff at Nicolet in providing her instruction, whereas the ESY instructor would have had very little because of the very nature of the ESY program. Further, Ms. Schlomer had prior experience with the Liberator, and she had received more substantial training from the manufacturer than the person selected to provide ESY services. In addition, given the length of the longer academic year relative to the six-week ESY program, Ms. Schlomer had more time and opportunity to obtain and apply the necessary competencies than the person identified for the ESY program. As described above, through the District's good faith efforts Ms. Schlomer achieved the necessary competencies early in academic year to begin providing special education services reasonably calculated to provide an educational benefit in the first weeks of school. Cf. Weedsport Cent. Sch. Dist., 31 I.D.E.L.R. 125 (SEA NY 1999)(finding that instructors had been adequately trained on the Liberator and noting that "educators routinely adapt to new tools and techniques to meet their student's needs"). The District implemented the substantial and significant provisions of the IEP for the academic year 1999-2000 without undue delay, and thus timely implemented the IEP.
68. Because the District has provided FAPE during the 1999-2000 academic year, there is no basis for directing the District to provide compensatory education services.

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The request for reimbursement of $1,400 for private placement for the denial of FAPE for the ESY program in the summer of 1999 is granted.

2. The request for compensatory education services for the alleged denial of FAPE for the academic year 1999-2000 is denied.

Dated at Milwaukee, Wisconsin on this _25th_ day of April, 2000.

NOTICE OF APPEAL RIGHTS

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 §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512.