IDEA Complaint Decision 00-012

On March 20, 2000 (letter dated March 15, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Greenwood School. 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 relevant education records of the district and the district's response to the complaint. Department staff spoke by telephone with a complainant, the special education director for CESA #10, and the school psychologist.

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ISSUE:

the district fail to provide the complainants with written notice explaining why the district refused to provide their son with extended school year (ESY) services during the summer of 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 115.792, 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. * * *
(2) NOTICE. The notice required under sub. (1)(b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in 115.78(4).

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Question 9

9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP?

If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing.

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Department of Public Instruction Information Update Bulletin 98.10, Question 20

20. What is the LEA to do if the school staff on the IEP team agree but parents disagree with the school staff?

Both state and federal law contain provisions under procedural safeguards on how to proceed whenever a parents does not agree with an IEP team's determination of a child's eligibility or continued eligibility for special education and related services, need for special education, IEP content, placement, or provision of FAPE [Sec. 115, Wis. Stats. And IDEA 1997]. The LEA must provide prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation, placement, or provision of FAPE to a child [Sec. 115.792, Wis. Stats.].

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FINDINGS OF FACT:

This complaint concerns the education of a 10-year-old child with a disability who attends school in the Greenwood School District. On April 1 and 8, 1999, the district held individualized education program (IEP) team meetings to conduct an annual review of the child's IEP. At the meetings, the complainants requested that the child receive extended school year (ESY) services during the summer of 1999.

The IEP team discussed the complainants' request, and district staff did not agree with the complainants regarding the child's need for ESY services. District staff on the IEP team determined that the child did not need ESY services during the summer of 1999. The IEP team's discussion of ESY services is documented in the child's April 1999 IEP on a full page entitled "Extended School Year Consideration." It indicates that the child "did not have significant regression" the previous summer when he did not receive ESY services. The IEP includes observations from the child's special education teacher, regular education teacher, physical therapist, occupational therapist, and a private physician. Generally, all of them indicate that the child has made steady progress, and none of them state that the child needs ESY services to avoid regression and maintain his current level of functioning.

In late April 1999, the district sent the complainants a notice of placement and the IEP, including the "Extended Year Consideration" page. That page explains why the district refused to provide ESY services to the child. The notice of placement sent by the district does not include sources for the parents to contact to obtain assistance in understanding special education law.

At the complainants' request, the district engaged in mediation on the issue of ESY services for the child for the summer of 1999. The complainants and the district signed a written mediation agreement on June 1 and 11, 1999, respectively. The agreement states, in part, that the child will attend summer school and that the district will provide transportation to the child for summer school. The agreement also states that the complainants continue to believe that the child needs ESY services, that the child's IEP does not provide for ESY services, and that the district is not offering ESY services to the child for the summer of 1999.

CONCLUSION:

A local educational agency (LEA) has a responsibility to provide a free appropriate public education to each child with a disability. An IEP team should work toward consensus, but the LEA has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. If the team cannot reach consensus, the LEA must provide the parents with prior written notice of the LEA's proposals or refusals, or both, regarding the child's educational program.

At IEP team meetings held on April 1 and 8, 1999, the complainants requested that the child's IEP include the provision of ESY services for the summer of 1999. The IEP team discussed providing ESY services to the child, and district staff did not agree with the complainants. District staff on the IEP team determined that the child did not need ESY services during the summer of 1999.

The IEP team's consideration of ESY services is included as a full page in the child's IEP. In late April 1999, the district sent the complainants a notice of placement and the child's IEP, including the "Extended School Year Consideration" page. This page of the IEP provided an explanation to the parents of why the district refused to provide ESY services to the child. The notice of placement that was sent to the complainants included a statement that parents have procedural safeguards under special education law, but it did not include sources for the complainants to contact to obtain assistance. This omission from the notice constitutes a technical violation.

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DIRECTIVE:

The Greenwood School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that when the district provides written notice to parents of children with disabilities under 115.792(1)(b), Stats., the notice includes sources for parents to contact to obtain assistance in understanding special education law.

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
5/18/00
_________________________________________
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