IDEA Complaint Decision 00-013

On March 27, 2000 (letter dated March 22, 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 provided by the complainant and the school district, as well as the relevant educational records of the child. In addition, department staff interviewed the following people by phone: the special education supervisor and the relevant principal, teacher, and social worker.

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ISSUE:

the district fail, during the 1998-99 school year, to refer the child for an evaluation to determine the child's eligibility for special education?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:
1. Cognitive disabilities.
2. Hearing impairments.
3. Speech or language impairments.
4. Visual impairments.
5. Emotional disturbance.
6. Orthopedic impairments.
7. Autism.
8. Traumatic brain injury.
9. Other health impairments.
10. Learning disabilities.

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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:
(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age.

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Section 115.777, Wisconsin Statutes
Special education referrals.

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(1)(b) A person who is required to be licensed under 115.28 (7), who is employed by a local educational agency and who reasonably believes a child has a disability, shall refer the child to the local educational agency.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Milwaukee Public School District. During the 1998-99 school year, he attended the Global Learning Center. During the 1998-99 school year, the parents did not express concern in writing to personnel of the school district that the child was in need of special education and related services, and they did not request an individualized education program (IEP) team evaluation of the child to determine whether he was a child with a disability under Ch. 115, Wisconsin Statutes.

During the 1998-99 school year, the child interacted with several staff who were in a position to refer him for an evaluation to determine whether he was a child with a disability. The school social worker, who had worked with the child and his family for several years prior to the 1998-99 school year, continued to work closely with the child and his family. She worked with the child because the child's home and family life presented many stresses and affected the child's performance in school. The child's teacher, who is certified to teach children with learning disabilities and is the mother of two children with disabilities, believed that the child's behavior and performance did not demonstrate a need for special education and related services, but instead demonstrated a need for social services. He was often tired, because of the activities at home, and he used the classroom as a place to decompress from the stresses at home. The principal saw the child on occasion during her visits to the classroom, and she also thought that the child's behaviors were a reflection of a "dysfunctional" home life rather than special education needs. The teacher, social worker, and principal did not believe that the student required special education. No district staff person referred the child for an IEP team evaluation during the 1998-99 school year.

During the 1999-2000 school year, the child attended Kosciuszko Middle School. The district held an IEP team meeting on December 13, 1999, to determine initial eligibility for special education under Ch. 115, Wisconsin Statutes. The team found the student to be a student with an other health impairment and eligible for special education. On the same date, the IEP team developed an IEP and determined placement. The district offered the student a placement beginning December 14, 1999.

CONCLUSION:

An LEA must identify, locate, and evaluate all children with disabilities who are in need of special education and related services and make available a free appropriate public education to each student with a disability. A teacher is required to refer a student for an evaluation if the teacher suspects the student may need special education because of a disability. Here, none of the child's teachers suspected him to be a student with a disability during the 1998-99 school year. Instead, they believed that his behavior and performance in class resulted from stresses in his home and family life. The complaint is not substantiated.

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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
6/19/00
_________________________________________
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