Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINAL DECISION AND ORDER

The PARTIES to this proceeding are certified as follows:

On August 4, 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 Briane F. Pagel, Jr., attorney for [Student]. Accordingly, the 45-day decision deadline expires September 18, 1999.

A prehearing conference was conducted by telephone on August 19, 1999. Pursuant to due notice, hearing was held August 31, 1999, at [City], Wisconsin, Jeffrey D. Boldt, administrative law judge (the ALJ) presiding.

1. [Student] (d.o.b. xxxxx), is currently enrolled as a third-grade student at [City] Elementary School in the [Unnamed] School District (the District).
2. In 1996, [Student] was identified as a "child with a disability" within the meaning of sec. 115.76(5), Wis. Stats. and applicable Federal Law.
3. [Student] had an Individualized Educational Plan (IEP) in place for each of her previous three school years (kindergarten through second grade). Upon her three-year re-evaluation, the District changed its assessment of [Student] and concluded that she was not a "child with a disability" under applicable law.
4. The parties stipulated that [Student] needs no "specially designed instruction" to meet her educational needs. The parties further stipulated that [Student] requires "related services" specifically assistance in toileting and provision for access to an appropriate toilet, to accommodate her medically necessary needs.
5. [Student] suffers from neurogenic bowel and bladder function—"cloaca", and genitourinary impairments. ([Unnamed District] Exhibit (WH) 15-17; WH 80-82; WH 139-140; WH 160) As a result, she requires monitoring with toileting. (Id.) [Student] also has a single neurogenic kidney and has a lack of spinal development which must be guarded against physical impact or injury to her lower back and buttocks. (Id.) In addition, [Student] has a 1.5 centimeter difference in her left leg resulting in decreased musculature in that leg. (Id.) The result is a lack of endurance for gross motor activities, e.g., walking, running, skipping, etc. (Id.) Her sensitivity to latex also requires the District to take certain precautions in assisting [Student] during toileting and emergency situations. (Id.)
6. Although [Student] needs monitoring of her toileting and some supervision in her physical education class and on the playground, [Student] needs no specially designed instruction since [Student]’s disability has no effect on her general education curriculum. (WH 146-164; WH 214-218; Transcript (TR) pp. 33, 42-43)
7. [Student] is not a "child with a disability" under current law.

At hearing, the parties stipulated that [Student] met the definition of "Other Health Impaired" and that "all services [[Student] requires] are 'related services' within the meaning of Wisconsin Statutes and the meaning in the federal regulations and that there are no general special education curriculum components therein." (TR pp. 4-5) The only issue left for decision by the Division was the issue of whether "a child with an impairment that is in need of only 'related services' is a 'child with a disability.' . . ." (TR pp. 5, 30)

Given the stipulations of the parties, it is clear that [Student] is not a "child with a disability" within the meaning of sec. 115.76(5)(a), Wis. Stats., and 20 U.S.C. 1401(3)(a)(ii). Both the IDEA and Chapter 115 clearly state that to qualify as a "child with a disability," a student must need "special education and related services." (Id.) Further, the recently enacted Federal Regulations interpreting the IDEA specifically address this issue:

34 C.F.R. sec. 300.7(a)(2)(i). (Emphasis added). Further, the Comments to the regulations are even more clear:

To the extent possible, Chapter 115, Wisconsin Statutes is to be construed in a manner consistent with federal law. Sec. 115.758, Stats. There is no question that both state and federal law do not consider a child receiving only "related services" to be a "child with a disability" for purposes of an Exceptional Educational Needs (EEN) designation. Under these circumstances, the District’s determination was correct. It is expected that [Student] will continue to receive needed services under a Section 504 plan.

1. The Division of Hearings and Appeals has authority to hear due process hearing requests and to issue necessary Orders pursuant to sec. 227.43(1m), Stats.
2. "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program. Sec. 115.76(7), Stats.
3. "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child’s parents, to meet the unique needs of a child with a disability, including instruction in physical education. Sec. 115.76(15), Stats. The parties stipulated that [Student] needs no "specially designed instruction" within the above definition.
4. "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services, including rehabilitative counseling; orientation and mobility services; medical services for diagnostic and evaluative purposes only; and the early identification and assessment of disabling conditions in children. Sec. 115.76(14), Wis. Stats. The parties stipulated that [Student] requires "related services" within the above definition to meet her medically necessary toileting needs, and to monitor her to prevent other trauma.
5. The parties stipulated that [Student] has an "other health impairment" (OHI) within the meaning of sec. 115.76(5) (a)(9), Stats.
6. [I]f it is determined, through an appropriate evaluation under secs. 300.530-300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part. 34 C.F.R. sec. 300.7(1)(2)(i) [Student] is accordingly not a "child with a disability" under Federal law.
7. To the extent possible, Chapter 115, Wis. Stats., shall be construed in a manner that is consistent with 20 U.S.C. sec. 1400 to 1487. Sec. 115.758, Stats. [Student] is not a "child with a disability" under applicable Wisconsin law.
8. This decision is timely because it is issued within 45 days of the request for hearing. 34 C.F.R. sec. 300.512(a)

WHEREFORE IT IS HEREBY ORDERED, that the District’s determination that [Student] is not a child with a disability be AFFIRMED,

IT IS FURTHER ORDERED, that this matter be DISMISSED, WITH PREJUDICE.

Dated at Madison, Wisconsin on September 17, 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. § 300.512.