IDEA Complaint Decision 00-005

On February 1, 2000 (letter dated January 31, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Hustisford 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. In investigating this complaint department staff reviewed documents and relevant education records of the child submitted by the district, as well the complaint letter and materials sent by complainants.

Issues #4, #5, #6 and #7 are issues in this complaint and in due process hearing LEA 00-017. By letter dated October 6, 2000, the department determined that it would not proceed with an investigation of issues #4 through #7 of the complaint, all of which were held in abeyance pending the outcome of the related due process hearing decision. The hearing decided these issues and the decision is binding on the department.

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ISSUE #1:

the district (after all IEP team meetings since February 3, 1999) fail to provide to the parent copies of the IEP to be implemented because it either provided several substantively different copies of the IEP to the parent or it failed to provide copies at all?

ISSUE #2:

the district fail to provide services consistent with the child's IEP when it failed to provide the student access to the computer lab between February 1, 1999, and February 3, 1999?

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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under § 115.787.

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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….

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(3) DEVELOPMENT. * * *

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(e) The local educational agency shall give a copy of the child's individualized education program to the child's parents with the notice of placement under § 115.792 (2).

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Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31.

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.

FINDINGS OF FACT:

During the time period covered by this complaint, the district convened IEP team meetings on February 3 and 10, 1999, and on May 6 and 18, 1999, which resulted in revisions to the child's IEP. The revised IEPs are dated February 10 and May 18, 1999. The February 10, 1999, IEP was forwarded to the parent by letter dated February 18, 1999, from the district special education coordinator. The letter of complaint refers to this letter, indicating that the letter was received. The May 18, 1999, IEP was forwarded to the parent by letter dated May 19, 1999, from the director of special education for the district. The letter of complaint indicates that a copy of this IEP was received after the May 18 meeting. Both letters were accompanied by a statement of parent rights.

Complainants maintain that on February 1, 2, and 3, 1999, the youth was not permitted to use the computer lab, despite the fact that his IEP provides that he should have access to the lab. The IEP in effect during this time period is dated December 21, 1998. The special factors page of this IEP provides that the child needs assistive technology services or devices and states "[c]omputer lab available to student." However, according to district records, the child did not attend school during any of these three days.

CONCLUSION:

Whenever a district proposes to initiate or change the provision of FAPE to a child, including implementing a revised IEP, the district must provide the child's parent a prior notice that meets the requirements of the law. The notice must include a description of the action proposed by the district and a description of all factors that are relevant to the action. The district must give a copy of the child's IEP to the child's parents with the notice of placement. The district revised the IEP for the child whose education is the subject of this complaint at meetings held on February 10 and May 18, 1999. By letters dated shortly after each of these IEP team meetings, the district provided the parent with copies of the revised IEPs. Issue #1 of the complaint is not substantiated.

Because the youth was not in school on the days in question, the district was not required to provide the services called for in the child's IEP. Issue #2 of the complaint is not substantiated.

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ISSUE #3:

the IEP team fail to consider, at IEP team meetings after February 1, 1999, the unique needs of the child due to his medication?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(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.

* * *

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:

* * *

(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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under § 115.777. (2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under § 115.787.

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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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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.

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(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.
2. Revise the individualized education program as appropriate to address all of the following:
a. Any lack of expected progress toward the annual goals and in the general curriculum.
b. The results of any reevaluation conducted under § 115.782.
c. Information about the child provided to or by the child's parents, as described in § 115.782.
d. The child's anticipated needs.
e. Other matters.

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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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(2) A statement of measurable annual goals, including benchmarks or short-term objectives, related to -
(i) Meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled children), or for preschool children, as appropriate, to participate in appropriate activities; and
(ii) Meeting each of the child's other educational needs that result from the child's disability * * * .

FINDINGS OF FACT:

On May 5, 2000, the complainants filed a request for a due process hearing. A decision was issued by the hearing officer on June 19, 2000. The hearing related to the same time period covered by this complaint investigation, and the hearing officer reached conclusions which are closely related to this issue of the complaint. In his decision, the hearing officer determined that:

There were no critical errors in the IEP process that would have questioned the validity of the February 3, 1999, IEP or the May 18, 1999, IEP.

It is clear from this seat that the May 18, 1999, IEP was reasonably conceived to provide an educational benefit to [Student]…. The District has done its job and provided FAPE to [Student].

Conclusions of law…. The Hustisford School District provided a free and appropriate public education [to] [Student] during the 1998-1999 school year…. The Individualized Education Plan formulated on May 18, 1999, was reasonably conceived to provide an educational benefit.

These determinations are not expressly related to the medication issue raised by complainants in this complaint. While the hearing decision notes that the student takes medication and several times makes other references to medication-related issues, no direct findings or conclusions related to the medication needs of the child are reached. Nevertheless, the department must consider the hearing officer's determinations because he specifically concluded that the district offered the youth FAPE and that the student's IEPs were developed through acceptable processes.

During the time period covered by this complaint, the district convened IEP team meetings on February 3 and 10, 1999, and on May 6 and 18, 1999. The letter of complaint relating to this issue states the following:

It is well documented…of the need for information as it may pertain to the Student's medication and the physical problems that Student has experienced in relationship to medication, the changes, the dosages and side effects Student has had. Parent was asked for an immediate response to this pre-written determination at the IEP meeting of 12/21/98 and said she was unwilling to without knowing if the behavior changes are a result of medication….

Notations have been made of the importance of notifying Parent on two addendum or additions to the IEP in the form of typed sheets. Parent and…[advocate] discuss at every meeting the physical health of the Student by bringing to the Team medication side effects and dosages…. Parent and [advocate] have sent numerous letters and presented notes to all IEP members regarding importance of comments and concerns on the weekly comment sheets over changes in physical appearance or behavior especially because the weekly comments sheets are taken to the….[doctor] in charge of medication management to maintain or change dosages for maximum benefit and prevent the health problems of the past due to medication…. There is no mention in the IEP of medication….

These concerns primarily are directed at portions of the youth's IEP dated December 21, 1998, which predates the period covered by this complaint. These passages indicate that the parent and advocate were afforded the opportunity to present to the IEP team their concerns regarding the youth's medication regimen and its effects. The present levels of performance section of the youth's February 10, 1999, IEP states that:

[Parent] feels that medication is a big factor in [student's] behavior. She states that [student's] on task behavior and attention is dependent upon his medication levels, sensitivity to medication, and time of day.

The "short term objective/benchmarks" related to the second annual goal in this IEP states:

[g]iven a small group instruction setting that minimizes distractors and content similar to that which is being presented in regular education in the subject areas of math and science and also with an understanding that his medication levels affect his ability to focus and stay on task…[student] will be completing 60% of assigned work during class by the end of the third quarter. [Emphasis added.]

The section of this IEP which describes the related services to be provided to the student, under the heading "other," indicates that the district will provide "medical consultation to review medication: Coordinator of Special Education will secure information." The duration of this portion of the IEP is "end of 3rd quarter."

The student's May 18, 1999, IEP indicates that the present levels of performance from the youth's February 10, 1999, IEP remain applicable. The present levels statement also includes new information assimilated from an independent educational evaluation conducted by an evaluator selected as part of a due process hearing relating to this youth's education conducted during the spring of 1999. A portion of the statement which reads "[h]is current, reportedly helpful medication treatment for these problems makes it difficult to determine the underlying symptoms, severity in both areas" is quoted directly from the evaluator's report. The second annual goal for this IEP includes a benchmark/short term objective identical to the one quoted above, with the exception that the time period is to be by the end of the first quarter of the next school year. This IEP also contains the same related service provision quoted above. Finally, the notice of placement for this IEP indicates that "[s]trategies in medication management at home…as per [independent evaluator's] report will hopefully have a positive effect on [student's] behavior."

The district repeatedly has attempted to secure parent permission to discuss the youth's medication needs with his treating physician. The parent was not willing to give written permission until February 3, 1999, when she signed a release of information permitting the district to contact the child's doctor. By letter dated February 3, 1999, the district administrator informed the doctor of the district's interest in contracting with him for consultation regarding the youth's special education program, including participation in an IEP team meeting. The information release signed by the parent was enclosed with the letter. A letter to the doctor dated February 17, 1999, from the district's special education coordinator again requests the doctor's assistance, noting the writer's understanding that the parent had not given the doctor verbal permission to speak with district staff. District records forwarded to the department include a document dated March 25, 1999, headed "Release of Medical Records and Consent to Speak with Physician" signed by the parent, giving district staff permission to discuss the youth's medical needs with the child's doctor. District records also contain a second copy of this document faxed to the district by the child's physician which includes a hand-written notation dated June 10, 1999, signed by the parent withdrawing her consent for district staff to speak with the doctor.

CONCLUSION:

A school district is required by law to initiate and conduct IEP team meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year but can occur at any time within the year, including upon reasonable request by the parents of a child with a disability. A child's IEP must be based upon the child's unique educational needs and include services to meet those needs. During the IEP team meetings and in the IEPs related to this issue, the district considered the parent's concerns resulting from her son's medication-related needs and included provisions in the IEP to address those needs. The district attempted to obtain additional information directly from the youth's treating physician, but, with the exception of the period between March 25 and June 10, 1999, the parent did not give the district effective permission to speak directly with the doctor. The hearing decision related to this issue determines that the district provided a free and appropriate public education to youth during the 1998-1999 school year and that the February 10 and May 18, 1999, IEPs were developed using proper procedures. Issue #3 of the complaint is not substantiated.

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ISSUE #8:

the district fail to provide requested copies of the child's educational records (specifically, the last report card and the last assessment) to the parent during the spring semester of the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wisconsin Statutes
Pupil records.

(1) DEFINITIONS. In this section:
(a) "Behavioral records" means those pupil records which include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil's behavior, tests relating specifically to achievement or measurement of ability, the pupil's physical health records other than his or her immunization records or any lead screening records required under § 254.162, peace officers' records obtained under § 48.396 (1m) and any other pupil records that are not progress records.

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(c) "Progress records" means those pupil records which include the pupil's grades, a statement of the courses the pupil has taken, the pupil's attendance record, the pupil's immunization records, any lead screening records required under § 254.162 and records of the pupil's school extracurricular activities.

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(d) "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under § 115.28(7) to hold a certificate, license or permit if such records and notes are not available to others, nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

(2) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m). The school board shall adopt regulations to maintain the confidentiality of such records.
(a) A pupil, or the parent or guardian of a minor pupil, shall, upon request, be shown and provided with a copy of the pupil's progress records.
(b) An adult pupil or the parent or guardian of a minor pupil, shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

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34 CFR 99.3 What definitions apply to these regulations?

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Education records. (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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34 CFR 300.560 Definitions.

As used in §§ 300.560-300.576--

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Education records means the type of records covered under the definition of education records in part 99 of this title (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes--

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(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records * * * .

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Division of Learning Support: Equity and Advocacy Information Update Bulletin 98.02, 1998

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16. What are the rights of parents of children with EEN to access pupil records?

 

A parent of a child with EEN must, upon request, be shown and provided with a copy of pupil records. * * * A school district must comply with a request for access to records without unnecessary delay * * * . In all cases, the school district must comply with a parent's request within 45 days. * * *

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FINDINGS OF FACT:

The district provides WSAS test results to parents with report cards. The district does not send report cards by mail to parents of students in the district's junior/senior high school (grades 7-12). This has been district practice for several years and is communicated in a newsletter sent to parents prior to the end of the school year. Students also are informed at the end of the year that their report cards are available to be picked up at the main office. Report cards (and test results) not picked up are maintained in the office. The district began this process, in part, because parents had complained that they had not received their child's report card through the mail.

In an amendment to their initial letter of complaint, complainants allege that, despite the parent's request, the district did not provide copies of the student's final report card for the 1998-1999 school year nor the results of the student's Wisconsin Student Assessment System (WSAS) test for that year when he was in eighth grade. The district maintains that it was unaware that the parent was requesting these documents until it received, on March 3, 2000, its copy of the letter from the department initiating this complaint investigation. The district asserts that on March 31, 2000, it sent the report card and test results to the parent by registered letter.

CONCLUSION:

A district must comply with a parental request for access to their child's educational records, and for copies of the child's behavioral and progress records without unnecessary delay, and before any meeting regarding an IEP or a due process hearing, and in no case more than 45 days after the request has been made. Under state law a student's grades and the results of statewide testing, including WSAS tests, are considered student records which must be made available to parents within 45 days of request. District practice is to make final report cards and WSAS test results available to parents for pick up at the office. Parents are notified of this practice by newsletter sent near the end of the year. It was not until the district received a letter from the department initiating this complaint investigation that it knew the parents were requesting these documents. The district sent these records to the parent within 45 days of their request. Issue #8 of the complaint is not substantiated.

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ISSUE #9:

the IEP team fail to consider the child's transition needs during all IEP team meetings held after February 3, 1999?

APPLICABLE STATUTES AND RULES:

34 CFR 300.662 Filing a complaint.

(a) An organization or individual may file a signed written complaint under the procedures described in §§300.660-300.661.
(b) The complaint must include--
(1) A statement that a public agency has violated a requirement of Part B of the Act or of this part; and
(2) The facts on which the statement is based.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Attachment 1–Analysis of Comments and Changes, Filing a Complaint (§ 300.662), 64 FR 12647

States must evaluate and resolve each complaint on its own merits. It is reasonable for a State to resolve a complaint on an issue that is the same as an issue in an earlier resolved complaint by reference to that earlier complaint resolution if it has first concluded, through review and evaluation, that the facts and circumstances pertinent to the complaints are unchanged. If a State were to refuse to accept a complaint because it appeared to be similar to an issue in an earlier-resolved complaint without reviewing whether the facts and circumstances pertinent to the complaints remain the same, the State could be ignoring potential violations of the Act.

FINDINGS OF FACT AND CONCLUSION:

On January 20, 1999, complainants filed a complaint against the district. Issue #6 in that complaint is "[d]id the district fail to include a statement of transition services in the child's IEP?" A decision was issued on September 16, 1999, in this earlier complaint investigation. The findings of fact in this decision determine that "[t]he child's IEP was revised during a meeting on February 10, 1999. The IEP provides that a Form I-3 Transition page is to be completed for children 14 or older. The IEP does not include such a form and does not include a description of the courses of study needed to prepare the child for a successful transition to his goals for life after secondary school." The conclusion related to this issue is that a violation had occurred.

The district was directed to submit proposed corrective action to address this violation. The department approved the proposal submitted by the district, later determined that the activity had been completed and closed the investigation on January 26, 2000. Materials sent by the district to the department on December 6, 1999, clearly indicate that district staff was trained that IEP teams must consider the transition needs of students with disabilities beginning with the IEP which is in effect when the child reaches age 14. The student's IEP was not revised following completion of the corrective activities in the previous complaint investigation and during the time period covered by this complaint investigation. The department concludes that the earlier complaint decision resolved the issue in this complaint.

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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 MJT
11/28/00
________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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