IDEA Complaint Decision 00-029

On May 8, 2000 (letter dated May 4, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Elmbrook School District. 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 from the parent, director of pupil services, associate principal, and a school psychologist and relevant materials and pupil records from the school district. Department staff also had discussions with the parent and the director of pupil services.

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ISSUE #1:

the district fail to provide homebound services to the complainants' daughter consistent with a proper individualized education program (IEP) during the 1999-2000 school year?

ISSUE #2:

the district improperly apply the eligibility criteria for the impairment of emotional disturbance during an October 1999, IEP team evaluation of complainants' daughter?

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:

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5. Emotional disturbance

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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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(15) "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child's parents, to meet the unique needs of a child with a disability, including instruction in physical education.

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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,

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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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(1m) 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:
(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.

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Section 115.782, Wisconsin Statutes
Evaluations.

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(3) DETERMINATION OF ELIGIBILITY FOR SPECIAL EDUCATION. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability.

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(b) If the individualized education program team determines that a child is a child with a disability, the team shall prepare an evaluation report that includes documentation of determination of eligibility.

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(c) If the individualized education program team determines that a child is not a child with a disability, the team shall prepare an evaluation report.

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(4) REEVALUATIONS. (a) A local educational agency shall ensure that the individualized education program team does all of the following:

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2. Reevaluates a child with a disability in accordance with this section if the local educational agency determines that conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years.

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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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Sec. 300.346 Development, review, and revision of IEP.

(a) Development of IEP. (1) General. In developing each child's IEP, the IEP team shall consider--

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(2) Consideration of special factors. The IEP team also shall--

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(i) In the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.

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Wisconsin Administrative Code, Section 11.35 Eligibility Criteria

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(2) HANDICAPPING CONDITION.

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(g) Emotional disturbance.

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2. Emotional disturbance is characterized by emotional, social and behavioral functioning that significantly interferes with the child's total educational program and development including the acquisition or production, or both, of appropriate academic skills, social interactions, interpersonal relationships or intrapersonal adjustment. The condition denotes intraindividual and interindividual conflict or variant or deviant behavior or any combination thereof, exhibited in the social systems of school, home and community and may be recognized by the child or significant others.
3. All children may experience situational anxiety, stress and conflict or demonstrate deviant behaviors at various times and to varying degrees. However, the handicapping condition of emotional disturbance shall be considered only when behaviors are characterized as severe, chronic or frequent and are manifested in 2 or more of the child's social systems, e.g. school, home or community.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31 and 35.

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.* * *

35. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

FINDINGS OF FACT:

The student whose education is the subject of this complaint received special education services at the Brookfield East High School and at home during the 1999-2000 school year. On January 29, 1999, the district conducted a meeting to review/revise the student's IEP and to determine the student's placement. The student's parent participated in the IEP meeting. The student's January 29, 1999, IEP requires special education programming and related services, including hearing impaired consultation services twice per month (up to 60 minutes) and transportation services twice daily to/from home/school (during regular school term), in addition to providing the following supplementary aids and services: preferential seating, reminder of hearing aid use, reminder of assignment notebook use, and closed captioning for ideas or visual alternative to auditory messages presented on a daily basis. The student's IEP was in effect for the period beginning January 29, 1999, and ending January 28, 2000.

On August 27, 1999, the parents made a referral for a reevaluation of their daughter. On September 8, 1999, the district sent the parent a notice of reevaluation and an invitation to an IEP meeting scheduled for October 27, 1999. On October 27, 1999, an IEP team meeting was held to determine the student's eligibility for the impairment of emotional disturbance, to review/revise the student's IEP, and to determine the student's special education placement. The student's parent participated in the IEP team meeting. The IEP team's evaluation report under the heading "Determination of Eligibility for Special Education" documents that the complainants' daughter continues to meet the criteria for a hearing impairment and continues to need special education. The evaluation report further documents that the complainants' daughter does not meet the criteria for emotional disturbance. In documenting the reasons for not meeting the eligibility criteria for emotional disturbance, the IEP team's evaluation report reads:

Observation of (student) in the school setting, as well as data gathered from all of her teachers, indicates that (student) is functioning in the above average range academically. In the school setting, (student) is not demonstrating significant behavioral or emotional difficulties that interfere with her educational performance. Severe, chronic, and frequent emotional difficulties in at least two settings cannot be documented at this time.

At the time of the evaluation, the district documented that the student was functioning in the "above average" range both academically and behaviorally, and that severe, chronic and frequent emotional difficulties in at least two settings could not be documented.

The student's IEP also lists under the "special factors worksheet" section some positive behavior interventions, strategies and supports utilized in addressing the student's behavior:

(Student) has not been attending school since 10/21/99.
Natural consequences are used for her:
-ability/inability to participate in special events
-rewards/consequences worked out with parents for home privileges
-praise at school for attendance/completed work/participation

The student's October 27, 1999, IEP requires special education programming, including the provision of direct hearing impaired services (if student attends school) for fifty minutes daily in a resource room and the provision of hearing impaired services at home on a consultation basis by telephone or in person (with student, parent, and school staff) once a week for fifty minutes. The student's IEP also requires the following supplementary aids and services to be provided the student: use of personal hearing aids consistently, closed captioning for videos with written supplements as needed and preferential seating. These supports are to be provided daily or as needed in the regular classroom or homebound setting. The student's IEP was for the period beginning October 27, 1999, and ending October 26, 2000. The IEP includes support services to be provided the student in both regular education and homebound settings, but does not indicate the amount of time to be committed to these services.

An IEP team meeting was held on April 12, 2000, to determine the student's eligibility for ED services, to review/revise the student's IEP, and to determine the student's special education placement. The student's parents participated in the team meeting. The student's IEP was for the period beginning April 12, 2000, and ending April 11, 2001. The student was found to be eligible for ED services. The student's April 12, 2000, IEP requires special education programming, including unspecified "homebound services" on a weekly basis, ED services for fifty minutes per week in a homebound setting and hearing impaired services twice a month on a consultation basis. The student's IEP also requires the following supplementary aids and services be provided in a homebound setting: closed captioning for video presentations per class as recommended, written summaries for audio presentations (if needed) and extended time for assignments/projects (if needed). The homebound services included under special education programming in the student's IEP are not specifically identified as to the nature of those services and do not indicate the amount of time committed to the services on a weekly basis. The homebound support services in the student's IEP do not indicate the amount of time, including frequency/time committed to these services.

By letter dated May 4, 2000, the parents filed an Individuals with Disabilities Education Act (IDEA) complaint with the department alleging that the school district failed to provide homebound services to their daughter consistent with a proper IEP during the 1999-2000 school year. An IEP team meeting was held on May 15, 2000, to revise the student's IEP. The student's parents participated in the team meeting. The student's IEP was for the period beginning May 15, 2000, and ending April 11, 2001. The student's May 15, 2000, IEP requires special education programming, including homebound services in the Spring 2000 for 2-4 hours per week; Summer 2000 for 2-4 hours per week; and Fall 2000-2001 for 7.5 hours per week; ED services for 50 minutes per week; and hearing impaired services twice a month on a consultation basis. The supplementary aids and services indicated in the May 15, 2000, IEP were the same supports included in the student's April 12, 2000, IEP. The "homebound services" are not specifically identified as to the nature of those services. The student's IEP also does not indicate the amount of time, including frequency/time committed to the homebound support services.

CONCLUSION:

A district meets its obligation to provide a free appropriate public education (FAPE) to a child with a disability in part by providing special education and related services, which meet the rules enforced by the department and in conformity with a proper IEP. Among the rules enforced by the department are the rules concerning the content of a child's IEP. The IEP for each child must include a statement of specific special education and related services, including supplementary aids and services or supports to be provided the child. The statement of special education and related services, including supplementary aids and services must specify the amount of each service. The amount of time committed to each of the services must be stated in the IEP in a manner that is clear to all who are involved in both the development and the implementation of the IEP. The district must implement the provisions in the child's IEP.

Issue #1 deals with the allegation that the district failed to provide homebound services to the complainants' daughter consistent with a proper IEP during the 1999-2000 school year. The October 27, 1999, April 12 and May 15, 2000, IEPs require the district to provide special education and supplementary aids and services to the complainants' daughter, but these IEPs are unclear as to the specific "homebound services" to be provided and do not indicate the amount of time committed to these services. Therefore, the district failed to provide homebound services consistent with a proper IEP. The complaint is substantiated for issue #1.

A school district must appoint an IEP team when a child is referred for an initial special education evaluation or reevaluation. The parent is a participant on the IEP team. The IEP team is required to evaluate or reevaluate the child to determine the child's eligibility or continued eligibility for special education and related services and the special education needs of the child. A child is eligible as a child with a disability under the ED disability category only when behaviors are characterized as severe, chronic or frequent and are manifested in two or more of the child's social systems: school, home or community.

Issue #2 deals with the allegation that the district improperly applied the eligibility criteria for the impairment of emotional disturbance during an October 1999, IEP team evaluation of complainants' daughter. The October 27, 1999, IEP team evaluation report documents that the daughter's behavioral or emotional difficulties did not interfere with her educational performance and that severe, chronic and frequent emotional difficulties are not manifested in two or more of the daughter's social systems. On October 27, 1999, the IEP team did not improperly apply the eligibility criteria for the impairment of emotional disturbance. The complaint is not substantiated for issue #2.

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The Elmbrook School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the IEP of this student and the IEPs of other students provide "homebound services" consistent with a proper IEP, including the specific services to be provided and the amount of time to be committed to the services.

 

 

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 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
9/1/00
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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