IDEA Complaint Decision 00-010

On March 3, 2000 (letter dated March 3, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the 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. During this investigation, department staff reviewed written statements prepared by the complainant and district staff and the child's relevant educational records.

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ISSUE:

the district improperly change the child's placement because an IEP team did not determine the placement of the child at Andrew Douglas and did the district fail to provide notice to the parents of the new placement?

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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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777.

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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.
(c) Determine the special education placement for the child under 115.79.

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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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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location, and duration of those services and modifications.

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program.

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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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34 CFR 300.552 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options;

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(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home;
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 99-048 (October 25, 1999)

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The IEP team must determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. ¿[T]he IEP team must determine if the child's IEP can be implemented in the school the child would attend if the child were not disabled. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

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Department letter to Kaye K. Vance (December 29, 1999)

* * * Congress also added a requirement that the parents be a part of any group that makes placement decisions. If all components of placement are already contained in the IEP, which parents have always had a right to participate in developing, Congress would not have needed to include the new right that parents be involved in the "placement" decision. We believe the new requirements in IDEA '97 relating to IEP components and placement decisions strongly support our position that, as a general rule, placement includes building. Placement must be determined by a group, which in Wisconsin is the IEP team. * * *

FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Milwaukee Public Schools district. An IEP team determined he should receive special education and related services because he has an impairment and, as a result of that impairment, needs special education.

On February 3, 2000, the parents called the office of student services. Due to an alleged incident at school, the parents requested another placement for their child. As a result of several phone conversations, a special education supervisor and the parent agreed that the child would begin attending Andrew Douglas Community Academy effective February 7, 2000.

An IEP team did not meet to determine the building in which the child's special education and related services would be delivered, and the district did not provide the parents with written notice of the building change before February 7, 2000. The child began attending Andrew Douglas Community Academy on February 7, 2000.

The district convened an IEP team meeting on March 16, 2000, to review and revise, if necessary, the child's IEP. The IEP team members agreed to continue the revision process at an additional IEP team meeting. The district convened the second IEP team meeting on March 31, 2000. The IEP team determined that special education and related services would continue to be provided at Andrew Douglas Community Academy.

The district provided the parents with a Notice of Placement, which indicated that special education and related services would be delivered at Andrew Douglas. The Notice reads: "Date of placement determination: 3/27/2000¿.Date parent provided with the notice of placement: 3/27/2000¿.The IEP developed on 3/16/2000 will be implemented at Andrew Douglas in the Milwaukee Public School District, with a projected date of implementation on 3/16/2000." The IEP team did not meet on March 27, 2000, to make the placement determination.

CONCLUSION:

A school district must appoint an IEP team to determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. With respect to the school building or facility, the IEP team must determine if the child's IEP can be implemented in the school the child would attend if the child were not disabled. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

Here, the parents and a district supervisor discussed and determined a change in the child's educational placement by telephone. An IEP team did not determine the change in the child's placement. The LEA did not provide the parents with written notice before it changed the child's placement to Andrew Douglas. The district improperly changed the child's placement.

When the district did provide written notice to the parents regarding the child's placement at the Andrew Douglas Community Academy, the notice was not adequate. The district did not provide prior written notice when it informed the parents on March 27, 2000, of an action that occurred on March 16, 2000. Further, the Notice of Placement indicated that the placement decision was determined on March 27, 2000, which was a day on which the IEP team did not meet.

The complaint is substantiated.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district:

  1. conducts an IEP team meeting to determine the special education placement for each child with a disability and to consider whether the IEP could be implemented in the school the child would attend if not disabled;
  2. provides parents prior written notice whenever the district proposes to change the educational placement of a child with a disability; and
  3. provides the parents of the child whose education was the subject of this investigation with proper notice of placement.

The department has four open complaints where MPS was determined to have violated the law regarding how it selects the building in which services will be delivered to children with disabilities (99-048, 99-053, 99-058, and 00-010). The department will continue to work collaboratively with the district on this issue and will consolidate its oversight of necessary corrective actions in those complaints. The department will consider the issue closed when MPS documents:

  1. compliance with any child-specific directive(s) in the decisions, and
  2. compliance with a revised corrective action plan, submitted in response to the directives of this decision, that addresses the systemic nature of the violation and works within all levels of the district to correct the violation.

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, secs. 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
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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