IDEA Complaint Decision 00-002

On January 7, 2000 (letter dated January 6, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Stoughton Area School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. During this investigation, department staff reviewed written statements provided by the complainant and the school district, as well as relevant portions of the child's educational record. In addition, department staff interviewed by telephone the grandfather and district staff.

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ISSUE:

the district fail to provide services consistent with the child's IEP during the fall semester of the 1999-2000 school year with regard to testing modifications, seating accommodations, and assistance on long-range assignments?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "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.

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Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child * * *.

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34 CFR 300.342 When IEPs must be in effect.

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(b) Implementation of IEPs. Each public agency shall ensure that--

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(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of--
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

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34 CFR 300.347 Content of IEP.

(a) General. The IEP for each child with a disability must include--

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(6) The projected date for the beginning of the services and modifications described in paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of those services and modifications * * *.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31 and 35

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

35. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members ( 300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

The amount of a special education or related service to be provided to a child may be stated in the IEP as a range...only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior¿.

FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Stoughton Area School District. An IEP team determined she has a learning disability and requires special education and related services. She attends high school in the Stoughton Area School District.

During the fall semester of the 1999-2000 school year, the child's IEP was in effect beginning the first day of school (August 25, 1999). The district convened IEP team meetings to review and revise the IEP on September 20, 1999, and December 21, 1999.

Testing modifications

One provision of the child's IEP, which was in effect from August 25, 1999, through December 21, 1999, reads, "Use of [Mainstream Assistance Center (MAC)] support for all tests." This requirement appears on the program summary form as a program modification. This provision meant that the child would take all her tests in the MAC room.

At the beginning of each school year, the district informs regular education teachers of their responsibilities as specified in a child's IEP. The district has a template that allows case managers to list, in part, the testing accommodations or modifications required by a child's IEP. The list has not been maintained by the district. In interview, the case manager stated that, as a matter of district practice, he would have included the testing modifications as specified in a child's IEP on the template.

During the IEP team meeting held on September 20, 1999, the IEP team discussed this provision of the child's IEP because she was not taking all her tests in the MAC room. The team felt this continued to be a necessary service to meet the child's unique needs. The IEP continued to provide, "[u]se of MAC support for all tests." After the meeting, the case manager sent a memo to all regular education teachers of the child. The memo, in part, states, "[The child] should take all tests and quizzes in the MAC Room. Please place assessments in [the teacher's] mail box before test time."

Some regular education teachers sent the child to the MAC room for all tests. Some regular education teachers gave her the option of taking her tests in the MAC room, but they provided the test to her in the regular education classroom if she refused to go to the MAC room. Some regular education teachers felt it was the child's responsibility to decide where to take the test, and so didn't talk to the child about test-taking in the MAC room.

 

Seating accommodations

 

The child's IEP in effect from August 25, 1999, through December 21, 1999, addressed the issue of seating accommodations. The provision was revised by an IEP team on September 21, 1999.

The IEP in effect from August 25, 1999, through September 20, 1999, noted, as a supplementary aid and service, that the child "will be given seating in the back of the classroom when the seating allows for it¿. As decided by Regular Ed. Teacher and Case Coordinator." "When seating allows for it" was written because some classes did not have traditional rows of chairs; the team wanted the case coordinator to work with teachers who organized their seats in a circle, or around tables scattered throughout the classroom. Not all of the child's seating assignments were jointly decided by the case coordinator and the regular education teacher.

The IEP in effect from September 20, 1999, through December 21, 1999, noted, as a supplementary aid and service, "Seating in the back of the classroom if deemed necessary by the regular ed. teachers." The IEP team identified that this service would be provided to the child "as needed."

Assistance on long-range assignments

One provision of the child's IEP, which was in effect from August 25, 1999, through December 21, 1999, reads: "Use of [Mainstream Assistance Center (MAC)] support for all assignments, as needed." This requirement appears on the program summary form as a program modification.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education, related services, and supplementary aids and services in conformity with a proper IEP. The IEP must specify special education, related services, and supplementary aids and services to meet the child's needs. Regular education teachers and other service providers responsible for its implementation must be informed of and implement relevant portions of a child's IEP.

Here, the IEP specified that the child would take all tests in the MAC room. The district informed the teachers of this responsibility via the template and a specific memo. Not all regular education teachers implemented this portion of the child's IEP. There is a violation in this regard.

Prior to September 21, 1999, the IEP required that the regular education teacher and the case coordinator decide the seating assignment of the child. The regular education teachers and the case coordinator did not jointly decide the child's seating assignment for all classes. There is a violation in this regard.

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. It would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a particular behavior or the presence of a particular stimuli.

Here, two provisions under investigation are required "as needed." The IEP does not specify the amount of resources and does not identify the circumstances under which the regular education teacher should deem it necessary that the child sit at the back of the classroom (as required beginning September 21, 1999, through December 21, 1999). The IEP does not specify the amount of resources and does not identify the circumstances under which the use of the MAC room for long-term assignments is required. There are violations in these regards.

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DIRECTIVE:

The Stoughton Area School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. All high school regular education teachers implement IEP provisions for which they are responsible; (Issues #1 and #2)
  2. the amount of a special education or related service to be provided to a child is stated in the IEP with sufficient particularity to identify the district's level of commitment of resources and to inform staff of their responsibilities, including identification of the specific circumstances under which a particular service will be provided on an "as needed" basis. (Issue #3)

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
3/6/00
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720