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

Case No. LEA-99-052

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

On November 2, 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 [father] and [mother], parents of [student].

A prehearing conference was held on November 11, 1999, and the matter was set for hearing on December 9, 1999. On December 2, 1999, the parties jointly requested a postponement of the hearing due to a medical emergency. On December 3, 1999, a second prehearing conference was held and the matter was set for hearing on January 10, 2000. Further, the deadline for a decision was extended to January 28, 2000.

Pursuant to due notice, hearing was held at Madison, Wisconsin on January 10, 2000, Jeffrey D. Boldt, administrative law judge (the ALJ) presiding. The parties requested an opportunity to submit written briefs and the last brief was received on January 24, 2000.

The PARTIES to this proceeding are as follows:

FINDINGS OF FACT

1. [Student] (the Student) is a juvenile, date of birth [date], who currently resides at [street address], [City], Wisconsin. This residence is served by the [Unnamed] School District (the District).

2. The District has identified the Student as a "child with a disability" within the meaning of state and federal law. Specifically, the Student requires special education and related services by reason of "autism."

3. The Parents (the Parents) of the Student filed a due process hearing request in August, 1998, alleging that the District failed to provide a free and appropriate public education (FAPE) to the Student.

4. During the 1998-1999 school year, the Parents educated the Student at home.

5. The Parents and the District entered into extensive mediation and settlement discussions during the period of August, 1998 to August, 1999. On August 2, 1999, the parties entered into a detailed Settlement Agreement which compromised all claims relating to a denial of FAPE and set forth in considerable detail, an agreement to develop appropriate education, behavior management and sensory integration plans for the Student. (Ex. A)

6. The parties stipulated that the pending due process claim relates solely to whether or not the Settlement Agreement has been implemented by the District.

7. The Settlement Agreement is four pages long and sets forth the obligations of the Parents and the District in considerable detail. The focus of the dispute between the parties, however, is limited to an interpretation of paragraphs 4 through 7, which obligate the District to retain consultants to develop a behavior management plan (par. 4), a comprehensive occupational therapy plan (par. 5), a comprehensive language plan (par. 6) and a review of assistive technology assessments (par. 7). Further, the dispute centers on the timing for implementation of the above-described paragraphs 4 through 7, when read in conjunction with paragraph 14, which makes provisions of the consultative services subject to the Parents enrolling the student in the District, pursuant to an IEP and placement offer which were to be attached to the Settlement Agreement. (Ex. A); (TR. p. 6)

8. For reasons that are not entirely clear from the record, no IEP and placement offer were attached to the Settlement Agreement. (TR. p. 40; 105) This contributed to confusion and the dispute between the parties as to whether plans needed to be developed before or after the Student enrolled in the District on a full-time basis.

9. Before the start of the 1999-2000 school year the Parents brought the Student to school, and met with the District to coordinate the Student’s return to school. (TR. p. 42) Following the meeting the District proposed a plan "per the settlement agreement" to phase the Student into school. (Ex. E) The Parents raised a concern that they believed that the consultants were supposed to assist in developing the Student’s program before he returned to school. The District asserted that although they would contract with the consultants, they did not need to do so until after the Student was attending school full-time, which would have taken at least three weeks under the District’s plan. (Ex. E) The District has refused to develop a new program for the Student until he is attending school full-time. The Parents have insisted that the Student’s new program needs to be developed before he can attend full-time. This dispute could not be resolved, resulting in the hearing.

10. Because it is the focus of the conflict between the parties, it is useful to set forth paragraphs 4 through 7 and paragraph 14 in full:
    4. The District agrees to retain Mr. Mike Schoultz to assist in developing a positive behavior management plan for [student]. In addition, the District agrees to consult with Mr. Schoultz two times per month during the school year and provide for quarterly observation at school by Mr. Schoultz concerning the implementation of the positive behavior management plan;

    5. The District agrees to retain Sheila Frick or other occupational therapist from Therapeutic Resources to assist in developing a comprehensive occupational therapy plan for [student]. In addition, the District agrees to contract with Sheila Frick to assist on training an aide to work with [student] in a proactive manner and on implementation of the comprehensive therapy plan. The District will provide appropriate equipment and facilities to carry out the sensory integration program;

    6. The District agrees to retain Cathy Pauley who will assist on the development of a comprehensive language program for [student]. In addition, the District agrees to consult with Ms. Pauley during the school year concerning the implementation of the comprehensive language plan;

    7. The District agrees to consult with Jill Gierach of CESA 2 to review current assistive technology assessments for [student] in determining whether additional assessments are necessary and to assist in developing a comprehensive assistive technology plan for [student]. Ms. Gierach will prepare a report based upon the existing and any follow-up.

    14. The parties further agree that the District’s obligation to provide the services and make the above payments (except as to item no. 11) is subject to the parent’s enrolling [student] in the [Unnamed] School District pursuant to the IEP and placement offer which will be attached to the Settlement Agreement; …

11. The Parents currently allow the Student to attend school only during the lunch hour. The Student’s mother expressed concerns about the Student’s safety given what she believes were inappropriate behavioral management techniques used in the past, principally what she believed were excessive isolation in the form of "time-outs" (TR. p. 100, p. 106). She also noted that the Student is having behavior problems, including hitting other Students, even during the lunch hour period in which he is currently enrolled.

12. However, Dr. Elise Frattura Kampschroer, (Dr. Kampshroer), District Director of Student Services, provided undisputed expert testimony that the District could not provide the services described in paragraphs 4 through 7, unless the Student were observed in settings other than the lunch hour.

    Dr. Kampschroer testified that the consultants must observe [student] in his full-time academic setting before they can meaningfully participate in the IEP process. (TR., pp. 73-76). She opined that, "it’s impossible for the consultants to be of any benefit to the district without (the student) being in school. Autism in and of itself is a communicative disability that responds to stimuli in the environment. [The consultants] are not going to know how (the student) is going to respond until they see him in that environment." (TR., p. 53; p. 76). This observation is especially important because [student] has not been in school full-time for nearly two years. (TR., p. 24 and 99).

13. Further, Dr. Kampshroer’s opinion is corroborated by letters from the consultants themselves. An October 12, 1999 letter from Jill Gierach, an assistive technology consultant, states "I understand that [[student]] is only in school for lunch. It will be vitally important to me to see him in the academic environment where the A.T. is thought to increase, maintain or improve his functional capabilities." (Ex. L). Similarly, behavioral consultant Michael Shoultz writes, "As soon as possible, [student] should begin to expand the length of time that he participates in his school program." (Ex. M). Mr. Shoultz also notes that "the existing [behavior] protocol provides an appropriate frame of reference for targeting behavioral supports for [student]." Id.

14. Based upon a preponderance of the credible evidence, including all of the expert testimony, the District did not fail to implement the Settlement Agreement.

15. To facilitate a speedy resolution of this matter, and a return to school of the Student, the ALJ believes it is appropriate to amend the Settlement Agreement to include a timetable for its implementation. The new behavior management plan as described in paragraph 4 of the Settlement Agreement shall be developed within two weeks from the date of the Student’s enrollment in a District school for more than three academic class periods, not including the lunch hour, per day. The provisions of paragraphs 5 through 7 shall be implemented within three weeks of the Student’s enrollment for more than three academic class periods, not including the lunch hour. Further, a new IEP incorporating the plans and programs developed by the consultants shall be in place within 45 days of the Student’s enrollment in at least three academic class periods as described above.

DISCUSSION

The Settlement Agreement represents a contract between the parties. When a contract is plain and unambiguous, a court will construe it as it stands without looking to extrinsic evidence to determine the intent of the parties. In re Marriage of Rosplock v. Rosplock, 217 Wis. 2d. 22, 30-31, 577 N.W.2d 32, 37 (Wis. Ct. App. 1998) If, however, the language of the contract is ambiguous, then the court is not restricted to the face of the instrument in ascertaining intent, but may consider extrinsic evidence. Cargill Coal Co. v. Valentine, 275 Wis. 598, 602, 82 N.W.2d 883 (1957) Words or phrases in a contract are said to be ambiguous when they are reasonably susceptible to more than one interpretation. Jones v. Jenkins, 88 Wis. 2d 712, 722, 277 N.W.2d 815 (1979)

The provisions of paragraphs 4-7 are silent with respect to whether provision of the consulting services must be completed before or after commencement of the school year. However, paragraph 14 makes the District's obligation contingent upon " . . . the parent's enrolling (the student) in the [Unnamed] School District pursuant to the IEP and placement offer which will be attached to the Settlement Agreement." (Ex. A) Because no IEP or placement offer were attached to the Settlement Agreement, the provisions of paragraph 14 are "ambiguous" to the limited extent of determining what constitutes the student being "enrolled" in the District. Accordingly, it is appropriate to consider extrinsic evidence on this limited basis. When interpreting ambiguous provisions of a contract, the court must select a construction which gives effect to each part of the contract and reject constructions resulting in surplusage or unreasonable results. Kohler Co. v. Wixon, 204 Wis. 2d 327, 335, 555 N.W.2d 640 (Wis. Ct. App. 1996)

The Parents contend that the Student attending during the lunch hour constitutes his being "enrolled" in the District. However, there was undisputed expert testimony that it would be impractical for the consultants to develop the plans and programs described above without a more extensive opportunity to observe the student. There is no support in the record for the suggestion that the Student’s safety would be jeopardized by his attending classes other than the lunch hour, which he now attends. Indeed, Mr. Shoultz agreed that the existing behavior management plan was an appropriate starting point. Similarly, Ms. Gierach's letter indicates that a proper assistive technology plan could not be developed based solely on lunch hour attendance. Because neither side called Ms. Gierach or Mr. Schoultz to testify, these letters are hearsay. However, they serve to corroborate the undisputed expert opinion of Dr. Kampshroer.

Under these circumstances, it would be "unreasonable" to interpret paragraph 14 of the contract to mean that attending the lunch hour constituted enrollment in the District. Further, paragraph 14 would be "surplusage", having little or no meaning if attendance at only the lunch period were deemed enrollment in the District school.

The Student’s counsel frankly noted that this case "… may appear to be a battle of wills and to some extent it is." To facilitate an end to this battle, the ALJ has set a timetable for implementation of the Settlement Agreement. Given the Parents’ particular concerns about past discipline practice, the behavior management plan needs to be implemented as soon as practicable.

CONCLUSIONS OF LAW

1. "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.

2. "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 need of a child with a disability, including instruction in physical education. Sec. 115.76(15), Stats.

3. [Student] is a "child with a disability," that being "autism," within the meaning of Chapter 115, Wis. Stats. Sec. 115.76(5)(a)(7), Stats.

4. By means of the Settlement Agreement, the District has ensured that FAPE is available to the Student within the meaning of 20 U.S.C. § 612(a)(1)(A); 34 CFR § 300.300(a)(1), and Chapter 115, Wis. Stats.

5. The District has not denied the Student FAPE by means of a failure to implement the Settlement Agreement. The District "must be prepared to provide services, and to actually provide them if the student . . . accepts them, but not to force them on an uncooperative family." Edgerton Sch. Dist., 20 IDELR 126 (SEA WI, 1993). Furthermore, "while a school district must stand ready to serve a child when that child seeks services . . . there is no federal authority to override a parent's decision not to have their child participate." Letter to Wierda, 213:148 (OSEP). Pursuant to state and federal law, the District "stands ready to serve" the Student and is "prepared to provide" him with special education and related services. The District must "actually provide" all of the education and services in the Student's IEP when the Parents accept them by virtue of enrolling the Student in at least three academic class periods, not including the lunch hour.

ORDER

WHEREFORE, IT IS HEREBY ORDERED, that the Settlement Agreement be implemented as set forth in paragraph 15 above.

IT IS FURTHER ORDERED, that the due process hearing request be DISMISSED.

Dated at Madison, Wisconsin on January 28, 2000.