In the Matter of [Student] v. [Unnamed] School District

Case No.: LEA-99-054

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND
ORDER

The Parties to this proceeding are:

On November 5, 1999, the mother of [Student], {Mother], filed a due process hearing request with the Department of Public Instruction, as allowed under Wis. Stats. §115.80(1)(a), alleging the [Unnamed] School District (District) had denied her son a free and appropriate public education (FAPE) as required in 34 U.S.C § 1400(d)(1). After two pre-hearing teleconferences -- one on November 18, 1999 and another on January 7, 2000 -- a due process hearing was held on January 13, 2000 in the Northwestern Elementary School of the [Unnamed] School District.

1. [Student] is a ten year-old boy that received special education services while enrolled in the third grade at [Unnamed] School District during the 1998-99 school year. For the period he attended Northwestern Elementary School under review, he was appropriately classified as a child with a disability.
2. [Student] was receiving special education services due to a traumatic brain injury he suffered in June 1995 when he was thrown through the window of an automobile during a wreck. He was in a coma for several days at the time and had severe memory loss.
3. During his third grade year, he was being monitored for seizure activity as his teachers noted that there were times when he would "space out" during classroom instruction, impeding his learning.
4. [Student]’s second grade teacher recommended testing which [student] completed in January 1998. [Student] was found to have difficulty reading, spelling and organizing his thoughts for writing and was classified a child with a disability for purposes of the Individuals with Disabilities Act (IDEA), 34 U.S.C. § 1401(3)(A). An Individualized Education Plan (IEP) team was convened in August 1998 and an IEP formulated and signed.
5. [Mother] home-schooled her son from April until June and from August until November 1999 when the parents moved and the child was enrolled in a neighboring school.

[Mother] alleged three transgressions by the [Unnamed] School District. She argued that the District denied her son a FAPE when 1) it neglected to purchase a helmet as indicated in [student]’s IEP, 2) it failed to call [mother] when [student] was hit in the head in three separate instances at school, and 3) when it failed to competently administer [student]’s medication that attempted to control his seizures.

[Mother] alleged that the school did not provide a helmet as required in his August 1998 IEP until February 1999. It would not seem out of line for an IEP team to request the child with a traumatic brain injury to wear a helmet while he played outside. Nevertheless, the school did not adhere to the IEP team requirement until February 1999. The school psychologist confirmed this fact but he gave no reason for the delay. He noted that he made the purchase and was reimbursed by the school district.

[Mother] also alleged that school district was inattentive in its administering the Tegratol medication to control [student]’s seizures between September 29, 1998 and February 9, 1999. Tegratol is a prescription drug used to regulate seizures and must be taken at a specific time in order to maximize its effectiveness in the blood stream.

Under cross-examination, the school paraprofessional, Ms. Jayne Hogfeldt, noted inconsistencies in her recording of the administering of the drug. The times that Ms. Hogfeldt stated she gave [student] his medication seem reasonable – [mother] did not competently dispute Ms. Hogfeldt’s medical opinion that the medication should be taken within an hour of its prescribed time. The medication was generally given between two and three in the afternoon according to testimony from Ms. Hogfeldt and [student].

The sloppy recording of medication records is not acceptable, however. [Mother] testified that when [student] had an appointment in Duluth, MN, fifty minutes to an hour north of [City], she would remove him from the school that day. The District responded with records that note it administered medication and claims that [student] was in school for half a day. There is one day, October 12, 1998, where medical records show that [student] was in Duluth at an appointment but the school claimed it administered the medication and makes no notation as to [student]’s absence. The child’s medication record is replete with errors making it unreliable.

Finally, there were three instances where [student] was hit in the head while on school grounds, without a helmet, and this information was not directly conveyed to [mother], except through [student]. On one occasion, [student] was struck in the head by a Nerf football thrown by a school employee during recess. At another time, [student] testified that he was pushed in a hallway and hit his head against the wall. On another, he was sledding on school grounds and received a cut chin, which was treated by the school. In none of these situations did the school, knowing that it had a child with a traumatic brain injury, call the parent to notify that her son had received a blow to the head while playing at school.

[Mother] has proven that the school district was slothful and insensitive. The District has failed to meet its burden in this regard. The question of whether there has been a denial of FAPE is a different question, and is a prerequisite for reimbursement, 20 U.S.C. §1412(a)(10)(C)(i).

[Mother] is seeking a reimbursement of her moving expenses and home-schooling costs, much as if she had enrolled [student] in a private school. [Mother] argued that the nature and repetition of this denial of FAPE forced her to remove her son from [Unnamed] School District – she maintains that this was the only viable remedy. She stated that there is a paucity of affordable private school alternatives in this rural school district, so that she had no alternative but to home-school [student]. [Mother] seeks reimbursement for both the hours of home schooling and the moving costs – as she claims they were both derivative of the denial of FAPE.

It is true that when a "public school system ha[s] defaulted on its obligations under [IDEA], a private school placement is proper if under the Act if the education provided by the private school is reasonably calculated to enable the child to receive educational benefits." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 20 IDELR 532 (1993). [Mother] maintains that the [Unnamed] School District’s behavior constitutes a default of its obligations and that since there was no viable private school placement in this rural area, a home-schooling option was the equivalent. But this equivalency argument is not reached until [mother] has proven a denial of FAPE.

The District has proven that it provided a free and appropriate public education with a preponderance of the evidence. The proven claims of [mother] do not surmount the District’s ability to prove that it provided FAPE. The conduct that [mother] alleges was largely outside the purview of [student]’s special education and IEP process.

Much of the District’s conduct centered on recess time, not classroom time. Except for the IEP requirement that the District provide a helmet for playground activities, [student]’s educational program is not implicated. There is nothing in the record to argue that [student]’s special education program is not rationally conceived to provide an educational benefit. On the contrary, the District provided compelling testimony by [student]’s special education teacher that fulfills its burden. By all accounts, his placement was substantively appropriate and procedurally correct. He was found to be in need of services after the appropriate testing in the second grade.

While the failure to obtain a helmet for six months after it was required in the August 1998 IEP shows an appalling insensitivity on the part of the District, it only marginally affected [student]’s behavior at recess and not at all in the classroom. Testimony from [student]’s physical education teacher noted that [student]’s activities were altered very little due to the lack of a helmet.

If a helmet had been available, [student] would have been able to climb, slide and sled at recess. Moreover, the need to slide, climb and sled does not amount to other social, emotional, physical or vocational needs that may warrant a finding of a denial of FAPE based on conduct outside the classroom. [Student] was still able to run, throw and play games at recess without the helmet. The need to slide, climb and sled at recess is a minimal educational benefit and does not warrant a finding of a denial of FAPE.

Further, the mismanagement of [student]’s medicine records implicates [student] as a student, not as a special education student. As a parent, [mother] had an appropriate expectation that around the time requested, [student] would receive his medicine – this expectation would be the same whether [student] was a special education student or not. But the fact that he was gone, for the most part, when it was recorded that he received the medicine, again does not implicate his educational program. After all, he was not in school for those days. His "spacing out" and impeding his learning due to a lack of medicine largely did not occur and it is assumed that with [student] not in school, his mother administered the medication.

[Student]’s mother had an appropriate expectation that she would be notified if [student] was struck in the head at school, especially if the injury required medical attention or was caused by an errant toss from school personnel. While this was not done, it again did not implicate the educational program delivered to [student]. There was no evidence provided that [student] missed any school due to the injuries. Again, insensitivity does not amount to a denial of FAPE. When it comes to providing an appropriate education, setting its insensitivity aside, the District has met its burden.

Given that [mother], the mother of [student], has failed to puncture the District’s burden to provide FAPE, the question of whether moving costs or home-schooling costs are reimbursable expenses is not reached.

1. The [Unnamed] School District provided a free and appropriate education in accordance with 20 U.S.C. 1412 (a)(5), 34 CFR 300.550 and Wis.stats. § 115.79(3) and (4). The District is the prevailing party.

IT IS HEREBY ORDERED, that the due process hearing request filed by [mother] on behalf of her son [student] is dismissed.

Dated at Madison, Wisconsin on January 28, 2000.