Rosinsky v. Green Bay Area School District, Case No. 08-C-976.

Decision Date09 October 2009
Docket NumberCase No. 08-C-976.
Citation667 F.Supp.2d 964
PartiesAlex ROSINSKY<SMALL><SUP>1</SUP></SMALL> By his legal guardian Julie Rosinsky, Plaintiff, v. GREEN BAY AREA SCHOOL DISTRICT, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Deborah E. Decker, Tabet Divito & Rothstein LLC, Chicago, IL, for Plaintiff.

Renae W. Aldana, Katie A. Featherston, Quarles & Brady LLP, Milwaukee, WI, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WILLIAM C. GRIESBACH, District Judge.

Plaintiff Alex Rosinsky, through his mother and legal guardian Julie Rosinsky, seeks judicial review of the September 23, 2008, decision of Administrative Law Judge ("ALJ") Sally Pederson of the Wisconsin Division of Hearings and Appeals, following a due process hearing under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and its Wisconsin equivalent, Wis. Stat. § 115.758 et seq. ALJ Pederson found that the Green Bay Area School District ("the District") complied with federal and state special education law regarding Alex's evaluation, individualized education program ("IEP") team participation, IEP development and implementation, transition programming, and educational placement. ALJ Peterson also determined that the District repeatedly provided the required prior written notice to Ms. Rosinsky. While the ALJ did find that the District provided insufficient notice on one occasion, she concluded that the singular procedural defect did not result in a substantive violation of the IDEA. Plaintiff filed a petition for review of the ALJ's decision in the Circuit Court for Brown County and the District removed the case to federal court on November 13, 2008. (Doc. #1.) In the amended complaint filed on February 6, 2009, plaintiff alleges that the ALJ made improper evidentiary rulings, erroneous factual determinations and misapplied the IDEA. (Doc. # 12 at 18-19.) The District moved for summary judgment. (Doc. # 15.) For the reasons stated below, the District's motion will be granted.

BACKGROUND

Alex Rosinsky was medically diagnosed with Fragile X syndrome.2 (Decision of Administrative Law Judge Sally Pederson, dated September 23, 2008, hereinafter "Decision," at 3.) The District determined that Alex met the eligibility criteria for other health impairment ("OHI"), cognitive disability, and speech and language disability. (Id.) At the start of the 2007-2008 school year, an IEP was in effect for Alex. (Id.) There were four meetings regarding the IEP in 2007, occurring on May 31, November 20, December 6 and December 11. (Id. at 3-5.) The IEP from the May 31, 2007 meeting contained three goals for Alex, which related to the following: (1) his asking for assistance with tasks at job sites and with job tasks in school with no prompts; (2) increasing his employability skills to a more independent level with fewer prompts; and (3) increasing his independence in the community in a variety of settings such as stores, restaurants and recreational facilities with fewer prompts. (Id. at 3.) At the request of Ms. Rosinsky, the District conducted a special education reevaluation of Alex during the fall of the 2007-2008 school year. (Id. at 4.)

November 2007 IEP Meeting

On November 20, 2007, the District held an IEP meeting for the purpose of reevaluation and determining Alex's eligibility, which Ms. Rosinsky attended. (Id.) Ms. Rosinsky participated in the meeting by raising concerns, asking questions and providing input. (Id.) Prior to the meeting, Ms. Rosinsky requested that an IEP facilitator attend and participate, which the District did arrange for at the November IEP meeting and the two IEP meetings in December. (Id.) The District did not invite to the November IEP meeting Alex's case workers from Brown County and the Wisconsin Division of Vocational Rehabilitation ("DVR"), as the meeting was not called to develop or revise Alex's IEP and transition program. (Id.) Ms. Rosinsky did invite both case workers, however, and both did attend the November meeting. (Id.) After the meeting, Ms. Rosinsky provided the District written consent to allow it to invite Alex's case workers from Brown County and the DVR to future IEP meetings. (Id.; Hearing Ex. 35) As a result of the November 20 IEP meeting, the IEP team determined that it would convene another meeting on December 6 to develop a transition statement and annual IEP for Alex. (Decision at 4.)

IEP Meetings in December 2007

The IEP meeting on December 6 lasted three hours. (Hearing Ex. 7.) Ms. Rosinsky again attended and participated. (Decision at 4.) Also in attendance, among others, was the third-party IEP facilitator and Alex's Brown County case worker, Julie Stoltenow, though his DVR case worker, Steve Chronquist, did not attend. (Id.) Alex's two case workers did not receive written invitations from the District for the December 6 meeting. (Id.) The IEP team concluded at the end of the meeting that it would hold another meeting on December 11 to continue developing Alex's IEP and transition statement. (Id. at 5.)

The December 11, 2007 IEP meeting lasted five hours. (Hearing Ex. 7.) Ms. Rosinsky and the IEP facilitator attended, but Alex's DVR case worker did not. (Decision at 5.) The county and DVR case workers were sent written invitations by the District and both were aware of the meeting as they were in attendance at the meeting on December 6, where the December 11 meeting was announced.3 (Id.)

At the IEP meetings in December Ms. Rosinsky initially requested that Alex's IEP include 15 to 20 hours per week of work time in the community, though after discussing this request with the IEP facilitator she amended her request to 10 to 15 hours of the same. (Id.; Tr. 19-20.) The December IEP contained the following notes relating to this request in the "Determination and Notice of Continued Placement" section of the IEP:

Parent request for 10-15 hours of work time per week in community. Rejected as an absolute amount as school staff feel focus needs to be on variety of job skills learned, quality and completeness of work without prompts, and extending work time between breaks.

(Hearing Ex. 1 at 5-66.) The notice did not refer to a request for 15 to 20 hours per week of work time.

Ms. Rosinsky also requested that the District contract with a community service provider. This request was rejected in the IEP with the following notes: "Parent request district contract community service provider for community activities. Rejected as district programming can adequately provide community activities." (Id.) The written notice in the IEP did not specifically refer to the District contracting with a community service provider for services two or three times per week.

The Determination and Notice of Continued Placement page of the December IEP did not contain a description of evaluation procedures, assessments, records or reports that were used as a basis of refusing the requests. (Id.) The District provided Ms. Rosinsky a copy of the December IEP on December 21, 2007, along with a copy of the parent/student procedural safeguard rights. (Decision at 5.)

Events Subsequent to the December IEP Meetings

On December 19, 2007, Ms. Rosinsky wrote to the District and requested a meeting to discuss a behavior intervention plan ("BIP") for Alex. (Id. at 6; Hearing Ex. 36.) The next day Ms. Rosinsky wrote the district again and requested another IEP meeting to discuss goals and placement for Alex in the 2007-2008 school year. (Decision at 6; Hearing Ex. 6.) On January 3, 2008, the District responded to Ms. Rosinsky's request that it convene another IEP meeting to discuss Alex's goals and placement. The District refused her request on the basis that the IEP team had met for eight hours in December for "comprehensive drafting of Alex's IEP." (Hearing Ex. 7.) The District further noted that the IEP facilitator had assisted at the December meetings. This written notice did not refer to Ms. Rosinsky's request for a BIP. The Wisconsin Department of Public Instruction investigated a complaint against the District regarding plaintiff's request for another IEP team meeting and concluded that the District properly responded to the request. (Hearing Ex. 32.)

The goals of Alex's December IEP were implemented on January 2, 2008. (Decision at 6.) The first semester of the 2007-2008 school year ended 12 school days later, and Alex's special education teacher completed the progress report on January 18, 2008. As the new goals had been in effect for only a short period of time, the report was based on Alex's progress toward the goals that had been outlined in the previous IEP. (Id.) On June 9, 2008, another report of Alex's progress was made, this time based upon the goals established in the December 2007 IEP. (Id.)

Both IEPs that were in effect during the 2007-2008 school year contained transition service statements that included suggested courses of study, instruction, employment, post-school adult living, daily living, community experiences, functional vocational assessment, and related services. The transition plans also contained post-secondary goals. (Decision at 7.) For example, in the December IEP, the post secondary goal stated is that Alex "will be able to hold a 15-20 hour-per-week part-time supported employment job in a community setting utilizing his strengths, such as categorizing or sorting skills, and have limited customer interactions." (Hearing Ex. 1 at 5-59.) Alex's transition program and placement for 2007-2008 provided that in addition to attending West High School he would work at job sites in the community four or five times per week, including paid jobs, and would be involved in daily living, community and recreational/leisure activities, and vocational experiences in the community. (Id.) While in school, Alex...

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