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State Of Wisconsin DIVISION OF HEARINGS AND APPEALS
RULING AND ORDER ON
The Parties to this proceeding are: [Student], by 122 East Olin Avenue, Suite 195 Madison, WI 53713
[Unnamed] School District, by Lathrop and Clark 740 Regent Street, Suite 400 P.O. Box 1507 Madison, WI 53701-1507 BACKGROUND [Student] is a child with a disability. The parents of [Student] (Parents) filed a due process request on September 27, 1999 alleging a denial of a free and appropriate public education (FAPE) for their son. A pre-hearing teleconference was held on October 10, 1999 and a hearing date was scheduled for October 26,1999. Both parties later requested an extension at a pre-hearing teleconference held on October 15,1999 due to the inaccessibility of many documents. A decision date extension was granted and moved from November 11,1999 to December 13, 1999. [Student] was enrolled in the ninth grade at the Toki Middle School in [City] during the 1998-99 school year. He has been a student in the [Unnamed] School District (District) since 1985. His parents live in the [Unnamed] School District. He is currently enrolled at Wyalusing Academy, a private residential child caring institution in Prairie du Chien, Wisconsin. On February 11, 1999, the Dane County Department of Human Services (DCDHS) filed a Juvenile In Need of Protection or Services petition with the Dane County Juvenile Court on behalf of the parents. Dane County Circuit Court Judge Robert Pekowsky found [Student] to be a juvenile in need of protective services on July 29, 1999 in In the Interest of [Student], No. 99-JV-154, (Wis. Cir. Ct. Dane County, July 27, 1999). A disposition hearing was held on July 27, 1999. A transcript copy was made available to the undersigned administrative law judge. The Circuit Court ordered [Student] to be placed under the supervision of DCDHS for a period of one year, through midnight July 26, 2000. It further found that [Student]’s continued placement outside of his parental home was in his best interest and that a placement at Wyalusing was the least restrictive placement that is consistent with his needs. The District did not make an appearance at the disposition hearing, although [Student]’s guardian ad litem requested a psychological evaluation be sent to the District for IEP planning. This request was incorporated into the final order. The Circuit Court ordered the parents to pay the cost of out-of-home care in amount to be determined by DCDHS. This was later determined to be $951.27 per month to begin accruing from February 1999. On October 28, 1999 a conference call was held with all parties. The District moved to be dismissed as a party to the hearing. The District offered a formal motion on November 8, 1999 along with a brief supporting its position. The parents filed a simultaneous brief and a copy of the court order authorizing [Student]’s placement in Wyalusing. DISCUSSION On September 27, 1999, the parents of [Student] filed a due process hearing request with an attachment that delineated some of their concerns. Specifically, the parents stated that "the [Unnamed] School District has not heretofore, and cannot presently, provide [Student] with an appropriate public education that includes special education and related services designed to meet his unique needs." The hearing request goes on to allege a failure of learning by [Student] and a District struggling to control an increasingly abusive child, including an alleged directive by an assistant principal to have the parents call [Student] in sick until an alternate placement was found. It is clear, that at least at this nascent stage, that the parents have stated a claim for which the Individuals with Disabilities Education Act (IDEA) was intended. See 34 CFR § 300.1(a). Child Caring Institution The District moved to dismiss the hearing request because it is the only respondent. It argues that the District is not the proper party not because the parents have failed to state a claim, but because the remedy that the parents have requested is outside the District’s jurisdiction. Specifically, the District cites Wis. Stat.§115.81(4)(b)(5) (1997-98), noting that the county department or state agency shall "pay all of the child caring institution related costs of educating the child while the child resides in the child caring institution." The District argues that since the parents have only asked for reimbursement, their grievance, if there is one, is with the DCDHS, not the District. All parties agree that the District is responsible for providing a free and appropriate education -- even while [Student] is at Wyalusing in compliance with a court order. It is undisputed that the District has written an IEP to be implemented at Wyalusing and has been appropriately cognizant of this responsibility – although the content of the IEP is in question. Providing a free and appropriate public education to a child with a disability is the responsibility of the District. Wis. Stat. §115.77(1m)(b) (1997-98). The IDEA applies to the District under 34 CFR § 300.2(b)(ii) and to "other state agencies and schools" under 34 CFR § 300.2(B)(iii). In the case of children in child caring institutions, such as the instant case, there is a convergence of shared but delineated educational responsibility for the care of [Student]. This is noted in the District's Halvorson letter exhibit. But sorting out these responsibilities is unnecessary in this case, at least at this time. The parents have alleged a denial of FAPE by the School District. Moreover, the parents have alleged specific conduct by the District that they believe contributed to the deterioration of the relationship between the student and the District. The remedy that the parents seek is derivative of the alleged denial of FAPE. This is sufficient to conduct a hearing. Under 20 U.S.C § 1415(b)(6) and (f)(1), the parents must be afforded an opportunity to present complaints on the provision of a free and appropriate public education of their child and whenever a complaint is filed, the parents shall have an opportunity for an impartial due process hearing.
In addition, to ignore the allegations made by the parents and dismiss the hearing request would incur several negative effects: 1) A dismissal would deny the parents the opportunity to hear and cross-examine what has happened to [Student] during the last year of his of education. A dismissal needlessly short-circuits the process and the procedural guarantees in 20 USC § 1415. 2) A dismissal removes the school district's behavior from any review over the last year. The IDEA does not provide for a selective review of alleged denials of FAPE. In fact, Congress was specific when in 20 USC § 1415(f)(1), it provided that the parent shall have an opportunity for an impartial due process hearing. If it is alleged, then it needs to be addressed. Before it can be determined who pays, it is necessary to know who is at fault, if there is any. 3) While the parents have only asked for compensation, there may be other remedies. Dismissing the case would prevent the hearing officer from finding other, more equitable solutions. Hearing officers have the responsibility of giving content to the statutory requirement of an appropriate education. Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, at 187 (1982). Remedies are meant to be solutions to problems. By limiting the discussion to solutions without discovering the problem is short sighted. See In the Matter of xxxxx v. Flambeau School District, LEA 99-033 (September 20, 1999). There may be a time when further examination of the responsibilities delineated under 115.81 is appropriate. A dismissal now is premature. Behavioral vs. Educational Purposes The District further argues that [Student] was placed at Wyalusing for behavioral, not educational reasons. The impetus for the placement was a Juvenile in need of Protective Services (JIPS) petition filed by DCDHS for the parents with the Dane County Circuit Court. The parents note that [Student] was given off-campus placements with two to four hours of instruction per day. They note that [Student] repeatedly left these placements, without District intervention, to roam the streets of [City]. (Parents Brief, at 2). What is clear from this argument is that it requires a factual inquiry and further supports the need for a hearing. See In Re:Richard U., 30 IDELR 326 (SEA IA 1999). ORDER WHEREFORE IT IS HEREBY ORDERED, that the [Unnamed] School District’s motion for dismissal is denied. Dated at Madison, Wisconsin on November 30, 1999. STATE OF WISCONSIN
State Of Wisconsin DIVISION OF HEARINGS AND APPEALS
ORDER FOR DISMISSAL Based on the facsimile stating that Dane County Circuit Court Branch 5 had issued a decision in this matter, the petitioner filed a written withdrawal of the request for hearing. THEREFORE, IT IS HEREBY ORDERED, that the above-captioned matter is dismissed without prejudice.
Dated at Madison, Wisconsin on March 20, 2000. DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705 Telephone: (608) 266-7709 FAX: (608) 264-9885 By:____________________________________ Brian K. Hayes Administrative Law Judge
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_______________________________________________________________________________ By Decision and Order issued July 29, 1999, this Court adjudged [Student] to be a juvenile in need of protection and services. Now before the Court are three motions brought by the juvenile's parents, [Father] and [Mother] seeking modifications of that part of the Order which required them to pay a portion of [Student]'s placement at Wyalusing Academy. Having read the briefs submitted by the [Parents], Dane County Department of Human Services and the [Unnamed] School District, and also having heard oral argument on March 7, 2000, the Court is now prepared to rule as follows:
ACCORDINGLY, The Juvenile Court Commissioner's June 23, 1999 Order for Child Support is hereby VACATED, and this Court's July 29, 1999, Decision and Order is MODIFIED to recognize that the School District offered [Student] a placement at Wyalusing Academy in accordance with Wis. Stat. § 115.81 and therefore [Mother] and [Father] are relieved from any obligation to pay for [Student]'s care or placement at Wyalusing Academy. The County shall reimburse [Mother] and [Father] all monies they paid for the placement of their son at Wyalusing Academy since August 9, 1999. SO ORDERED. Dated this 14th day of March, 2000. BY THE COURT:
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