Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On February 20, 2002, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA), from the attorney for [Student] (the "Student") and her (sic) parent, [Mother]. A due process hearing was held on March 20, 2002. At the request of the Marshall School District (the School District), the hearing was continued on April 19, 2002 and April 23, 2002. The hearing was open to the public at the request of [Mother]. Pursuant to the partially amended scheduling order, the parties filed post-hearing briefs on May 3, 2002.

1. Whether on February 13, 2002, the School District denied the Student a Free and Appropriate Public Education by deviating from the established Individualized Education Program (IEP)/Behavioral Intervention Plan (BIP) when it utilized an out-of-school suspension.
2. Whether the School District violated [Mother]'s procedural due process rights under Wis. Stats. Ch. 115, and IDEA, when it failed to immediately notify [Mother] of a behavior referral made on February 13, 2002.
3. Whether the School District denied the Student a Free and Appropriate Public Education by deviating from the established IEP when it failed to provide [Student] with an aid on February 13, 2002.

1. The Student is a seventh grade student at Marshall Middle School in the Marshall School District. He is a student with a disability as defined by Wis. Stat. §115.76(5). (See Exhibit 4)

2. On May 24, 2000, an IEP meeting was convened in preparation for the 2000/2001 school year. At that meeting a Behavior Intervention Plan (BIP) was created and attached to the body of the IEP that the team created for the 2000/2001 school year. (See Exhibit 3, Tr. 105, 106:1-7)

3. Reference to the BIP is made on the last page of the 2000/2001 IEP using the words, "see attached behavior plan" in the section marked "Supplementary Aids and Services…"(Tr. 105:22-25; 106:1-7)

4. Another IEP meeting was convened on May 9, 2001 in preparation for the 2001/2002 school year. In the 2001/2002 IEP the words, "see attached" were written by Randi Kubek in the section marked "Supplementary Aids and Services…" (Exhibit 4, pg. R36, Tr. 66:22-25; 67; 78:8-18; Tr.104:11-15)

5. The BIP created for the 2000/2001 school year was made part of the IEP developed for the 2001/2002 school year.

6. The Student requires the assistance of an aide during transitions from the end of one class to the beginning of the next.(Tr. 120:8-10, 167:10-20)

7. On February 13, 2002, the Student's regularly assigned aide, Laura Kurt was working in a different room from the Student during second hour. Randi Kubek, the student's special education teacher, took Ms. Kurt's place. (Tr. 124:12-25)

8. Ms. Kubek left the student between 8 and 14 minutes before the end of second hour to use the bathroom. Ms. Kubek did not return to the Student's classroom, because she was side tracked by a student and parent who were arguing with each other. (Tr.125:13-25; 126:17-25; 127:1-15; 294: 2-14)

9. At the end of second hour, the Student swore, stating "What the Hell!" The Student's regular education teacher for that hour, Angie Stuttgen, confronted the Student and in response to the Student's inquiry, told the student he would not receive a "good" mark for that hour. The Student then had a tantrum. During his tantrum, the Student asked to speak to his aide, specifically Ms. Kurt. (Tr. 294:14-25; 296; 297:1-10; 300:17-23)

10. Once the Student calmed himself, Ms. Stuttgen called the front office and asked for the principal, Tamera George, or for Ms. Kubek. Ms. George responded and escorted the Student to her office. (Tr. 297:1-10; 300:17-23; 336:6-20)

11. Ms. George placed the Student in an in-school room where the Student served an in-school suspension for the remainder of second hour and for the entirety of third hour. The Student returned to class for the fourth hour. (Tr. 336:13-25; 337; 338:1-4)

12. During the lunch hour on February 13, 2002, Ms. Kubek confronted the Student about his behavior during second hour. The Student again had a tantrum because Ms. Kubek told him he could not receive a "good" for his second hour performance. Ms. Kubek escorted the Student from the lunchroom to the teacher work-room part of the front office. (Tr. 338 & 339.)

13. Ms. Kubek unsuccessfully attempted to calm the Student, and she placed the Student in an in-school room. (Tr.131& 132:1-7; 339:14-23)

14. By the end of the lunch hour, the Student was still engaging in his tantrum, hitting his head on the door, screaming, and kicking. So, Ms. George decided to use an out-of-school suspension. She suspended the Student for the remainder of February 13, 2002 and for a full day on February 15, 2002. (Tr. 132:8-20; 339:14-24; 341)

15. The School District contacted the Student's foster mother to have her pick up the Student from school. Written notification was sent to [Mother]. (Tr. 338:5-11; 341: 8-13; 342:9-14)

Wisconsin Statute § 115.77(1m)(b) requires school districts to provide a free and appropriate public education (FAPE) to children with disabilities. (See also CFR§300.121) Wis. Stat. § 115.76(7) defines FAPE as, "special education and related services that are provided at public expense and under public supervision and direction…and are provided in conformity with an individualized education program." (See also CFR§ 300.13)

1. Did the School District's use of an out-of-school suspension on February 13, 2002 violate the Student's IEP/BIP, and therefore, deny the Student FAPE?
   A. The Behavior Intervention Plan
   It is [Mother]'s contention that the Behavior Intervention Plan (BIP) created in 2000 and attached to the Individualized Education Plan (IEP) promulgated on May 24, 2000, was carried over and incorporated into the 2001/2002 IEP created on May 9, 2001. [Mother] testified that she asked Ms. Kubek and Tara Schlueshe, the LEA representative, whether the BIP would still be part of the Student's IEP and they assured her that it would be. (Tr. 417:8-23)
   Randi Kubek, the student's special education teacher, testified that she was present at the May 9, 2001 IEP meeting and that the BIP created in 2000 was never discussed. (Tr. 72:12-25; 106:12-20) According to Ms. Kubeck the IEP team agreed that the Student's needs for behavior modification were appropriately addressed in the "Goals and Objectives" section of the 2001 IEP and that a BIP was not deemed necessary. Id.
   I do not find Ms. Kubeck's testimony regarding the BIP to be credible. First, Ms. Kubeck's testimony is logically inconsistent. In order to reject the use of a BIP, the IEP team would have to have had some discussion about it. I also find it extremely difficult to believe that a portion of an IEP as significant as a BIP would not be discussed during a review of that IEP. Second, the words, "see attached" appear on the last page of the 2001 IEP under "Supplementary aids and services…". (See Exhibit 4, pg. R36)¹
   The words "see attached" are vague and do not refer a reader of the IEP to any specifically named document. [Mother] asserts that she believed "see attached" meant the BIP originally established in 2000. Ms. Kubek testified that she was the recorder at the IEP meeting on May 9, 2001 and that she wrote out the IEP as the meeting progressed. (Tr. 66:22-25; 67;78: 8-18) Ms. Kubek further testified that when she used the phrase, "see attached", she was referring to the "Goals and Objectives" portion of the IEP, not to something outside the IEP. (Tr. 104:11-15; 201:15-25)
   The words "see attached", alone, would lead a reasonable reader to assume that the author was referring to a document outside the nine-page body of the IEP. This becomes more true given Ms. Kubek's prior reference to "see goals and objectives" earlier in the IEP. Ms. Kubek specifically uses the words, "See goals and objectives" instead of "see attached" to refer the reader back to the "goals and objectives" portion of the IEP when addressing Special Factors (See Exhibit 4, pg. R29). If Ms. Kubek intended to do the same on page R36 of the 2001 IEP, one would think that she would have used the same wording. Further, the last page of the 2000/2001 IEP, which was drafted by another member of the School District, states, "See attached Behavior Plan" under the section labeled, "Supplementary aids and services…" (Exhibit 3, pg. R25) Given that Ms. Kubek used the words "see attached" in that same section for the 2001/2002 IEP, it would again be reasonable to interpret the words "see attached" to mean a BIP. Therefore, I find it more likely than not that the BIP established for the 2000/2001 school year was carried over to, and part of the IEP created for the 2001/2002 school year.
   B. The use of an out-of-school suspension on February 13, 2002
   It is undisputed between the parties that the School District utilized an out-of-school suspension for at least half of a day on February 13, 2002 and a full day on February 14, 2002². Looking at the language contained in the nine-page body of the 2001/2002 IEP, I find nothing in the body that precludes the use of out-of-school suspensions as a form of discipline by the school district.
   It is undisputed that the Student's behavior deteriorated to aggression and self-injury during the lunch hour on February 13, 2002. While the Student's BIP listed in-school suspensions and restricted time as responses to aggression, destruction, or self injury, it did not provide for the use of out-of-school suspensions. (Exhibit 3, pg. R26) "If a child's IEP or behavior intervention plan addresses a particular behavior of the child, it generally would be inappropriate to utilize some other response, such as a suspension, to that behavior." 64 Fed. Reg. 12415, see also 64 Fed. Reg. 12626. Therefore, the School District should have utilized an in-school suspension as a primary response to the Student's lunch hour tantrum. It did not do so, but instead imposed an out-of-school suspension. Consequently, I find that the School District violated the terms of the BIP when it utilized an out-of-school suspension on February 13, 2002 and February 14, 2002.
   The School District argues that the use of the out-of-school suspension was appropriate because the student had already been given an in-school suspension for that day as a result of his behavior during second hour. However, the in-school suspension was an effective tool in calming the student and he returned to his classes after processing with Ms. Kurt and Ms. George. (Tr. 337:18-25, 338:1-4)
   Because the School District did not attempt to utilize an in-school suspension or restricted time in response to the Student's lunch hour tantrum, it cannot, in good faith, argue that those consequences would have been ineffective. Had the School District attempted an in-school suspension in response to the Student's lunch hour tantrum, then proceeded to an out-of-school suspension, I would have been more inclined to find the use of an out-of-school suspension to be appropriate, since the BIP does not provide for situations in which in-school suspensions or restricted time do not effectively calm the student.

2. Notice to [Mother] about the behavior referrals made on February 13, 2002
   It is undisputed that the School District did not immediately notify [Mother] of the behavioral referrals made on February 13, 2002. Immediate notification was given to the Student's foster-mother. It is also undisputed that the School District gave [Mother] written notification of the referrals some time during the weekend following February 13, 2002. The protections extended by Wis. Stat. Chapter 115 and the provisions of the IDEA, do not require School Districts to give parents immediate notification of short-term (less than 10 day) disciplinary measures taken by the School District. When suspending a student for less than ten days, there are no particular requirements a school must follow beyond the minimal due process rights afforded all students. OSEP Memorandum, 95-16, 22 IDELR 531(OSEP 1995), OSEP Memorandum 97-7, 26 IDELR 981 (OSEP 1997) Indeed, even counsel for [Mother] has failed to cite any statutory authority or case law that requires immediate telephonic notification to a parent of a student's suspension. Consequently, I find that the School District did not violate [Mother]'s parental rights under Wis. Stat. Chapter 115, nor did it violate her rights under IDEA - 20 USCA §1415, when it gave her written notification of the behavior referrals, in lieu of immediate telephonic notification.

3. Use of an Aide
   It is undisputed that the IEP created for the 2001/2002 school year requires an aide to be present to assist the student "whenever necessary." (See Exhibit 4, pg. R36) It is also undisputed that an aide was not present during the end of the Student's second hour class. The parties disagreement arises over whether the Student required an aide to be present during the end of second hour, when the Student had a tantrum because he would not receive a "good" for his class performance.
   I find that the Student required an aide at the end of second hour on February 13, 2002. First, the Student's tantrum during the end of second hour clearly indicated the need for an aide to assist the Student in processing his situation. The Student even requested the assistance of an aide, specifically, Ms. Kurt. Second, The Student requires assistance through transitions. (Tr. 120:8-10; 167:10-20) By moving the Student from the computer lab to Ms. George's office, the Student was effectively being transitioned from one room to another. Third, the end of the second hour was approaching and the Student would be transitioning from the computer lab to Ms. Stuttgen's classroom across the hall. (Tr 293:16-17) Ms. Kubek testified that the Student requires assistance transitioning from the end of one class to the beginning of his next class.³ (Tr. 120:8-10; 167:10-20). As such, the Student should have had an aide present and ready to assist him in a transition from the end of second hour to the beginning of his third hour class.
   Ms. Kubek and Ms. Stuttgen testified that the Student was performing well and did not appear to have any problems before Ms. Kubek left to use the restroom at the end of second hour. (Tr. 125:19-25; 126:1-4; 294:21-25; 295:1-11) As such, it was reasonable for Ms. Kubek to assume the student would be fine, while she excused herself to use the bathroom. Indeed, no one, including [Mother], faults Ms. Kubek for answering the call of nature. (Tr. 438:17-23) However, Ms. Kubek did not return from the bathroom and would not have been available to assist the Student in his transition between the computer lab and Ms. Stuttgen's third hour class. Nor, did Ms. Kubek attend to the Student during his second hour tantrum, when Ms. Stuttgen called for assistance from the front office where Ms. Kubek claims to have been during this incident. Ms. George responded. Ms. George cannot be considered an appropriate aide because there is no evidence that Ms. George has any training or expertise in effectively dealing with students with special needs. Further, Ms. George testified that she had never even read the Student's IEP. (Tr. 356:6-8)

1. The School District did not act in conformity with the Student's 2001/2002 IEP/BIP. Therefore, it denied the Student FAPE when it utilized an out-of-school suspension on February 13, 2002.

2. The School District did not violate the parent's procedural due process rights under Wis. Stat. Ch 115 or IDEA when it mailed written notice of the behavior referrals made on February 13, 2002, in lieu of immediate telephonic notification.

3. The School District did not act in conformity with the Student's 2001/2002 IEP by failing to provide the Student with an aide on February 13, 2002. Therefore, it denied the Student FAPE as defined in Wis. Stats. Ch 115 and IDEA.

4. The Student is the prevailing party with regard to issues one and three. The School District is the prevailing party with regard to issue two.

The relief requested by [Mother] was an order directing the School District to follow the 2001/2002 IEP/BIP. However, pursuant to Wis. Stat. §115.787(4), that IEP effectively expires on or about May 9, 2002. Consequently, the relief sought by [Mother] is meaningless.