IDEA Complaint Decision 00-014

On March 27, 2000 (letters dated March 24, 2000 and May 19, 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. In investigating this complaint, department staff reviewed relevant portions of the youth's education records and written statements from the district and complainant. Department staff contacted by telephone the school principal, the school assistant principal, a program support specialist and two district special education administrators.

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

ISSUE #1:

the district fail to provide a parent, upon request, access to the education records of her son?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wis. Stats.
Pupil records.

 

(1) DEFINITIONS. In this section:

* * *

(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.

* * *

(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.

* * *

34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

* * *

"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.

* * *

34 CFR 300.560 Definitions.

As used in §§ 300.560-300.577--

* * *

(b) Education records means the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

* * *

34 CFR 300.501 Opportunity to examine records; * * *.

(a) General. The parents of a child with a disability shall be afforded, in accordance with the procedures of §§ 300.562-300.569, an opportunity to--
(1) Inspect and review all education records with respect to---
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child; and

* * *

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 pursuant to §§ 300.507 and 300.521-300.528, and in no case more than 45 days after the request has been made.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

45 CFR Part 121a, Appendix A–Analysis of Final Regulation, §121a.562, August 23, 1977, (42 FR 42505) [Predecessor to current 34 CFR 300.562.]

* * *

Language has been added to make it clear that an agency must comply with a request for access before any meeting regarding an individualized education program. This will help insure that interested parents are able to familiarize themselves with their child's records prior to any meeting and be able to participate more knowledgeably.

* * *

Letter to the unnamed inquirer, Office of Special Education Programs (OSEP), U.S. Department of Education, March 31, 1998, 30 IDELR 539.

* * *

[T]he education records of a child, * * * are those records directly related to a child and maintained by the educational agency, or a party acting for the educational agency, on behalf of a child. See 34 CFR §§ 300.560 & 99.3. Examples of such records would be the child's individualized education plan (IEP), tests taken by the child, evaluations of the child, and other documents created in connection with the child's educational performance and conduct.

FINDINGS OF FACT:

The youth whose education is the subject of this complaint is a 7th grade student with a disability who moved to Milwaukee from New York City. On October 27, 1999, the youth's educational records in the form of a cumulative folder were sent from one district middle school to the district middle school the youth enrolled in for the 1999-2000 school year. The youth's cumulative folder included the youth's education records from the New York City Schools.

On December 1, 1999, the youth's mother signed a release of records to allow disclosure of materials about her son to a parent advocate. On December 7, 1999, an individualized education program (IEP) team meeting for the youth was conducted. The youth and the youth's mother attended the IEP team meeting with a parent advocate. At the IEP team meeting, the youth's mother and the parent advocate requested access to the youth's education records. The parent advocate reviewed the youth's records in the youth's cumulative folder. Records from the New York City Schools were in the building but not in the youth's cumulative folder. The youth's mother and the parent advocate requested access to the youth's New York City Schools education records. The district did not provide the mother and parent advocate with access to the education records in the student's New York City Schools records before proceeding with the December 7, 1999, IEP meeting. The IEP team determined that the child is a child with a disability; developed an IEP for the child; and determined a special education placement for the child. The New York City Schools records were shared with the parent on or about January 6, 2000.

CONCLUSION:

A school district is required to provide parents of a child with disability, on request, access to their child's education 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. Records include any information directly related to the student and maintained by an educational agency. The youth's mother and the parent advocate, during an IEP team meeting, requested access to the youth's New York City Schools education records. The district did provide access to a portion of the child's records to the mother and parent advocate, but did not provide access to the student's New York City Schools' records before proceeding with the December 7, 1999, IEP meeting. The district did provide access to the remaining portion of the child's records following the IEP team meeting. The district was required either to provide access to all records, or it was required to reconvene the IEP team meeting at a later date to permit the parent and parent advocate to have access to all of the child's records. The district failed to provide the parent with access to all of the student's education records before proceeding with an IEP meeting for the student. There is a violation with regard to issue #1 in this complaint.

_______________

ISSUE #2:

the district fail to provide the parent with proper notice of her son's individualized education program (IEP) team meeting held in March 2000?

APPLICABLE STATUTES AND RULES:

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

* * *

(lm) 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.

* * *

Wisconsin Statutes, Section 115.782
Evaluations.

(1) NOTICE; CONSENT. (a) The local educational agency shall notify the parents of the child, in accordance with § 115.792, of any evaluation procedures the agency proposes to conduct, the qualifications of the individuals who will conduct the evaluation and their names, if known.

* * *

Wisconsin Statutes, Section 115.792
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 the 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).

* * *

34 CFR 300.19 Native language.

(a) As used in this part, the term native language, if used with reference to an individual of limited English proficiency, means the following:
(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section.

* * *

34 CFR 300.345 Parent participation.

(a) Public agency responsibility--general. Each public agency shall take steps to ensure that one or both of the parents of the child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including --
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance; and

* * *

(d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as--
(1)Detailed records of telephone calls made or attempted and the results of those calls;
(2)Copies of correspondence sent to the parents and any responses received; and
(3)Detailed records of visits made to the parent's home or place of employment and the results of those visits.

* * *

34 CFR 300.501 Opportunity to examine records; parent participation in meetings.

 

(a) General. The parents of a child with a disability must be afforded, in accordance with the procedures of §§ 300.562-300.569, an opportunity to--

* * *

(2) Participate in meetings with respect to--
(i) The identification, evaluation, and educational placement of the child; and (ii)The provision of FAPE to the child.
(b) Parent participation in meetings. (1) Each public agency shall provide notice consistent with § 300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section.

* * *

34 CFR 300.503 Prior notice by the public agency; content of notice.

(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or

* * *

(c) Notice in understandable language. (1) The notice required under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(2) If the native language or other mode of communication of the parent is not a written language, the public agency shall take steps to ensure--
(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in paragraphs (c)(2) (i) and (ii) of this section have been met.

FINDINGS OF FACT:

No IEP team meetings were held in March 2000 for the child with a disability whose education is the subject of this complaint. On February 28, 2000, an IEP team meeting was conducted to evaluate the child and determine whether the child is a child with additional disabilities; review and revise the child's IEP, and determine placement. The IEP team also conducted a manifestation determination review. The child's special education records do not contain any written notices for the February 28, 2000, IEP team meeting or documentation of efforts to involve the child's parent. The child and the child's mother did not attend the February 28, 2000, IEP team meeting.

CONCLUSION:

An LEA must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including scheduling the meeting at a mutually agreed on time and place. Within a reasonable amount of time prior to the meeting; the LEA must notify the parents of the meeting. The notification must include the purpose, time, and location of the meeting; who will be in attendance; and the legal provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child. The LEA must provide required notices to the parent in the parent's native language.

An IEP team meeting was held on February 28, 2000, for the child whose education is the subject of this complaint. No IEP team meetings were held in March 2000. The LEA did not provide written notice to the parent for the February 28, 2000, IEP team meeting or document efforts to involve the child's mother. The child and the child's mother did not attend the February 28, 2000, IEP team meeting. Issue #2 of the complaint is substantiated for the February 28, 2000, IEP team meeting.

_______________

ISSUE #3:

the district fail to provide the child a free appropriate public education (FAPE) between March 2, 2000, and May 19, 2000, when the child had a significant number of school absences?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
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.

* * *

(9) "Individualized education program" means a written statement for a child with a disability that is developed, reviewed and revised in accordance with § 115.787.

* * *

 

Wisconsin Statutes, Section 115.77
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.

* * *

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

* * *

(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:
(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.

* * *

Wisconsin Statute, Section 115.79
Educational placements.

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

* * *

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

* * *

Wisconsin Statutes, Section 115.792
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.

* * *

 

Wisconsin Statutes, Section 118.15
Compulsory school attendance.

 

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

* * *

 

Wisconsin Statutes, Section 118.16
School attendance enforcement.

(1) In this section:
(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and § 118.15 for either of the following:
1. Part or all of 5 or more days out of 10 consecutive days on which school is held during a school semester.
2. Part or all of 10 or more days on which school is held during a school semester.

* * *

(c) "Truancy" means any absence of part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of § 118.15.
(2) The school attendance officer:
(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under § 118.15.

* * *

(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under § 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Individuals with Disabilities Education Act State Complaint No. 91-019, January 29, 1992.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program or if the child is unable to attend school for physical or emotional reasons, arrange for homebound instruction. If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

Individuals with Disabilities Education Act State Complaint No. 99-005, April 23, 1999.

When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child with FAPE.

FINDINGS OF FACT:

The district provided the department an attendance record of the child whose education is the subject of this complaint which covers the time period between March 9, and June 8, 2000. This record indicates that the child attended as follows:

Present 18 days (March 9, 13-16, 20-24, 27-30; April 3-5, 10)

Absent excused 19 days (March 10; April 6, 7, 11-20; May 1-5, May 9-11)

Absent unexcused 21 days (March 31; May 12-31; June 1-8)

Between March 9, and June 8, 2000, there were 58 days of student contact. Between March 9, 2000, and May 19, 2000, the child was present at school on 18 days. The child was absent excused on 19 days. The child was absent unexcused on 21 days. Between May 8 and May 19, 2000, the child was absent unexcused 7 days out of 10 consecutive days on which school was held during the semester. The child was absent unexcused 21 days on which school was held during the semester. State statute defines an habitual truant as a pupil who is absent from school without an acceptable excuse for either part or all of 5 or more days out of 10 consecutive days on which school is held during a school semester; or part or all of 10 or more days on which school is held during a school semester. The district did not notify the parent by registered or certified mail when the child initially became an habitual truant.

On April 10, 2000, the child's mother, a Truancy Abatement Burglary Suppression (TABS) staff person, and the local police were contacted regarding the child's attendance and behavior. School staff attempted 32 phone calls to the child's mother to discuss the child's attendance. The school staff was only successful in speaking to the child's mother on the phone on 4 of the 32 attempted phone calls. On April 17, 2000, a district school social worker assistant visited the child's mother at home and gave the child's mother a letter, an invitation to an April 18, 2000, IEP team meeting, a copy of the parent's rights and orally explained the documents to the parent. On April 18, 2000, an IEP team meeting was held to review the child's IEP and placement. The child and the child's mother did not attend the IEP team meeting. The child's attendance, academic performance, and behavior were considered at the IEP team meeting. The child's April 18, 2000, IEP includes objectives to address the child's school attendance. The IEP team determined that the child's IEP services would be delivered at the child's current placement. A notice of educational placement dated April 18, 2000, was sent to the parent. After April 18, 2000, the child did not attend school and, with the exception of unsuccessfully attempting to reach the parent by telephone, the district did not take action to address his failure to attend. The district took no further action regarding the child's habitual truancy.

CONCLUSION:

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, the district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. When a child is absent from school without an acceptable excuse part or all of 5 or more days out of 10 consecutive days, or part or all of 10 or more days, on which school is held during a semester, the child becomes an habitual truant. A district is required to notify the child's parent by registered or certified mail when the child initially becomes an habitual truant.

Between March 9, 2000, and June 8, 2000, the child attended school 18 of 58 days of student contact. Between May 8 and May 19, 2000, the child was absent unexcused 7 days out of 10 consecutive days on which school was held during the semester. The child was absent unexcused 21 days on which school was held during the semester. Therefore, the child was an habitual truant under state law. The district did not notify the child's parent by registered or certified mail when the child initially became an habitual truant. Between March 9, 2000, and May 23, 2000, the district attempted 32 times to reach the parent by telephone. On April 18, 2000, when the district revised the child's IEP, the district included objectives to address the child's school attendance. However, after April 18, 2000, the child did not attend school and, with the exception of unsuccessfully attempting to reach the parent by telephone, the district did not take action to address his failure to attend. The district did not take timely action to provide FAPE to the child when he had significant absences from school. Issue #3 of the complaint is substantiated.

_______________

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. complies with parental requests for copies of their children's education records before any meeting regarding an IEP (issue #1);
  2. notifies the parents of children with disabilities within a reasonable amount of time prior to an IEP team meeting and schedules IEP team meetings at a time and place mutually agreed upon with the parents (issue #2);
  3. within a reasonable amount to of time after the district learns that a child is not attending school, take steps consistent with its truancy procedures to provide the child with FAPE (issue #3); and
  4. conducts an IEP team meeting to consider whether the child whose education is the subject of this complaint requires additional services because of the delay in providing FAPE.

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.

_______________

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
7/26/00
______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

jfd

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