IDEA Complaint Decision 00-008

On February 22, 2000 (letter dated the same), a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools. 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 correspondence and relevant pupil records from the school district. Department staff also had discussions with the guardian and a building coordinator.

===========================

ISSUE #1:

the district refuse to schedule an individualized education program (IEP) meeting or provide a written notice to the parent in a timely manner regarding the parent's request on February 9, 2000, for an IEP meeting?

ISSUE #2:

the district fail to provide the child with a free appropriate public education (FAPE) by excluding him from school during the 1999-2000 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(7) "Free appropriate public education" means special education and related services that 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.

* * *

(12) "Parent" means a biological parent; a husband who has consented to the artificial insemination of his wife under 891.40; a male who is presumed to be the child's father under 891.41; a male who has been adjudicated the child's father under subch. VIII of ch. 48, under 767.45 to 767.51, by final order or judgment of an Indian tribal court of competent jurisdiction or by final order or judgment of a court of competent jurisdiction in another state; an adoptive parent; a legal guardian; a person acting as a parent of a child; a person appointed as a sustaining parent under 48.428; or a person assigned as a surrogate parent under 115.792 (1) (a) 2. "Parent" does not include any person whose parental rights have been terminated; the state or a county or a child welfare agency if a child was made a ward of the state or a county or child welfare agency under ch. 880 or if a child has been placed in the legal custody or guardianship of the state or a county or a child welfare agency under ch. 48 or ch. 767; or an American Indian tribal agency if the child was made a ward of the agency or placed in the legal custody or guardianship of the agency.
(13) "Person acting as a parent of a child" means a relative of the child or a private individual allowed to act as a parent of a child by the child's biological or adoptive parents or guardian, and includes the child's grandparent, neighbor, friend or private individual caring for the child with the explicit or tacit approval of the child's biological or adoptive parents or guardian. "Person acting as a parent of a child" does not include any person that receives public funds to care for the child if such funds exceed the cost of such care.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(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.

* * *

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

(1m) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777. Each team shall consist of all of the following:
(a) The parents of the child.

* * *

(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.
(b) Develop an individualized education program for the child under 115.787.
(c) Determine the special education placement for the child under 115.79.

* * *

Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

* * *

(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.

* * *

Section 118.125, Wisconsin Statutes
Pupil Records.

(1) Confidentiality. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m).

* * *

(e) Upon the written permission of an adult pupil, or the parent or guardian of a minor pupil, the school shall make available to the person named in the permission the behavioral records as determined by the person authorizing the release¿

* * *

Section 120.13, Wisconsin Statutes
School board powers.

The school board of a common or union high school district may * * *:
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c) 4. or (e) 4. or 119.25 (2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others, or for conduct while not at school or while not under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or his or her designee who shall be someone other than a principal, administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the suspension was inappropriate, given the nature of the alleged offense, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under 118.16(4)(a).

* * *

34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

* * *

"Disclosure" means to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means.

* * *

"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.

* * *

"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.

* * *

34 CFR 300.121 Free appropriate public education (FAPE).

* * *

(d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under 300.520 (a) (1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed.

* * *

34 CFR 300.343 IEP meetings.

(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability.

* * *

(c) Review and revision of IEPs. Each public agency shall ensure that the IEP team --
(1) Reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved.

* * *

34 CFR 300.571 Consent.

(a) * * * parental consent must be obtained before personally identifiable information is--
(1) Disclosed to anyone other than officials of participating agencies collecting or using the information under this part, subject to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement under this part.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 20

20. How frequently must a public agency conduct meetings to review, and, if appropriate, revise the IEP for each child with a disability?

* * *

Although the public agency is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a child with a disability have the right to request an IEP meeting at any time. For example, if the parents believe that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it would be appropriate for the parents to request an IEP meeting.

If a child's teacher feels that the child's IEP or placement is not appropriate for the child, the teacher should follow agency procedures with respect to: (1) calling or meeting with the parents or (2) requesting the agency to hold another IEP meeting to review the child's IEP.

The legislative history of Public Law 94-142 makes it clear that there should be as many meetings a year as any one child may need (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)). Public agencies should grant any reasonable parent request for an IEP meeting. For example, if the parents question the adequacy of services that are provided while their child is suspended for short periods of time, it would be appropriate to convene an IEP meeting.

* * *

FINDINGS OF FACT:

The child whose education is the subject of this complaint receives special education services at the Jackie Robinson Middle School during the 1999-2000 school year. On January 10, 2000, an IEP team conducted an initial evaluation of the child. The IEP team determined that the child is a child with a disability. At the meeting, the IEP team also developed the child's IEP for the period beginning January 10, 2000, and ending January 10, 2001, in addition to determining placement for the child at Jackie Robinson Middle School. The child's court-appointed guardian participated in the IEP team meeting.

On February 9, 2000, the complainant, an advocate, contacted an assistant principal by telephone at Jackie Robinson Middle School to request some information about the child with a disability. The assistant principal transferred the telephone call to a diagnostic teacher. The complainant requested that the diagnostic teacher provide him with information about the child and schedule an IEP team meeting to review the child's IEP. The diagnostic teacher asked the complainant to identify the agency he represented and requested some form of authorization from the guardian to release the confidential information on the child. The diagnostic teacher further requested to speak with the guardian to obtain her authorization to release the confidential information on the child, since the complainant was calling from the guardian's residence. The complainant's response to the diagnostic teacher's request was to hang up the telephone. The guardian did not contact the school to request an IEP team meeting. The guardian did not provide authorization to the school for the release of information on the child to the complainant until March 13, 2000.

On February 22, 2000, the complainant filed an IDEA complaint alleging that the district refused to honor the guardian's February 9, 2000, request to schedule an IEP team meeting to review the child's IEP. After the building coordinator at Jackie Robinson Middle School was made aware of an IDEA complaint, she contacted the guardian on March 14, 2000, to discuss the allegations. The guardian stated that there had been a misunderstanding in the filing of a complaint against the district. However, the guardian was concerned about her child's behavioral problems and school suspensions. The building coordinator and the classroom teacher in collaboration with the guardian scheduled an IEP team meeting for April 11, 2000, to review her child's IEP. The guardian subsequently cancelled the IEP team meeting because of a scheduling conflict. The district subsequently rescheduled an IEP team meeting.

On January 10, 2000, the child was found to have a disability and the need for special education. From this date, the child received out-of-school suspensions on January 14, 2000, and on February 1 and 2, 2000. At the time of the complaint, the child had received no other disciplinary removals during the 1999-2000 school year.

CONCLUSION:

The law requires that each child with a disability receive a free appropriate public education (FAPE). FAPE includes special education and related services consistent with an IEP. The law requires an LEA to hold IEP team meetings to review the child's IEP periodically, but not less than annually. The parents may request an IEP meeting at any time. An LEA should respond to any reasonable request from a parent for a meeting to review and, if necessary, revise the child's IEP. If the LEA denies the parent request for an IEP meeting, the LEA must provide the parent with a notice of refusal. All pupil records maintained by a school district are confidential, with certain exceptions. Generally, a school district must obtain written parental consent before personally identifiable information from an education record is disclosed to a third party.

The complainant alleges that the district refused to convene an IEP team meeting that the guardian requested on February 9, 2000, through a telephone conversation with district staff. On February 9, 2000, the complainant, not the guardian, telephoned the school district to request personally identifiable information on the child in addition to requesting an IEP team meeting. The district did not provide any confidential information to the complainant, because there was no authorization from the guardian for the release of confidential information about the child to the complainant until March 13, 2000. When the diagnostic teacher asked to speak to the guardian to obtain her authorization, the complainant hung up the telephone. Because the request for an IEP team meeting was made by an unauthorized individual and was not made by the guardian, the district was under no obligation to convene an IEP team meeting. Furthermore, the district scheduled an IEP team meeting in response to the guardian's expressed concerns about the child's behavior and suspensions. There is no violation in regard to issue #1.

A school district must provide a FAPE to each child with a disability. In order to provide a child with FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet the requirements of the statutes and rules enforced by the department, including those related to student suspension. State law governs procedures relating to the suspension of students. Under state law, a child with a disability may be suspended for up to five days or for up to ten consecutive days if a notice of expulsion has sent to the child's parents. Under federal special education law, a district need not provide services to a child with a disability during disciplinary removals totaling ten or fewer school days in a school year, if services are not provided to a child without disabilities who has been similarly removed. On January 10, 2000, the child was found to have a disability and the need for special education. At the time of this complaint, the child had been suspended for three days this school year. The suspensions did not violate either state standards related to suspension or federal special education law. There is no violation in regard to issue #2.

_______________

This concludes our investigation of this complaint, and we are closing this complaint investigation. 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
5/2/00
__________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

glch

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