IDEA Complaint Decision 00-034

On May 8, 2000 (letter dated April 11, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Clear Lake 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 and school district and relevant pupil records from the parent and the district. Department staff also had discussions with the parent, director of special education, and the child's special education teacher.

Issues #1, #3, #4, #6, and #7 in this complaint address the reevaluation of the student, the development and implementation of the student's 1999-2000 IEP and the complainant's right to be informed of her son's progress and whether that progress is sufficient to enable the student to achieve his goals; the parent's right to additional time at the beginning of an IEP meeting; and parent's right to a copy of son's evaluation report. Finally, the department will address issues #2 and #5, relating to the implementation of the student's 1999-2000 IEP concerning special education services and short-term objectives.

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ISSUE #1:

the district fail to include the parent as an equal participant in the development of her son's February 24, 2000, IEP, as the special education services, supplementary aids and services and placement were predetermined by district staff and presented to the parent at the IEP team meeting?

ISSUE #3:

the district fail to inform the parent of her son's progress toward his annual goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the 1999-2000 school year?

ISSUE #4:

the district fail to inform the parent of her right to additional time at the beginning of the February 24, 2000, IEP team meeting?

ISSUE #6:

the district fail to reevaluate the student at least once every three years?

ISSUE #7:

the district fail to provide the parent with a copy of her son's evaluation report with the February 23, 2000, notice of 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. Each team shall consist of all of the following:

(a) The parent of the child.

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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.
(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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(4) INFORMATION. At the beginning of any meeting to address the evaluation, individualized education program or placement of a child, the local educational agency staff shall inform the child's parents of their right to be provided with additional time under sub. (3) (d) and their right to a copy of the evaluation report under § 115.782 (3) (b) or (c).

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Section 115.782, Wisconsin Statutes
Evaluations.

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(3) DETERMINATION OF ELIGIBILITY FOR SPECIAL EDUCATION.

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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…If any IEP participant requests a copy of the evaluation report at any point in the process of developing the child's IEP or considering the child's educational placement, the local educational agency shall give a copy of the report to each IEP team participant before continuing the process. If no individualized education program team participant requests a copy of the evaluation report, the local educational agency shall give a copy to the child's parents with the notice of placement under § 115.792 (2).

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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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(h) A statement of all of the following:

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2. How the child's parents will be regularly informed, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the effective period of the individualized education program.

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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 a child with a disability are present at each IEP meeting or are afforded the opportunity to participate,

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 5, and 32.

5. What is the role of parents, including surrogate parents, in decisions regarding the educational programs of their children?

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing and revising the IEP for their child.

32. Is it permissible for an agency to have the IEP completed before the IEP meeting begins?

No. Agency staff may come to an IEP meeting prepared with evaluation findings and proposed recommendations regarding IEP content, but the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents. Parents have the right to bring questions, concerns, and recommendations to an IEP meeting as part of a full discussion, of the child's needs and the services to be provided to meet those needs before the IEP is finalized.

FINDINGS OF FACT:

The student whose education is the subject of this complaint received special education services in the Clear Lake School District during the 1999-2000 school year. On February 23, 1999, the district conducted an individualized education program (IEP) team meeting to reevaluate the student, to review the student's IEP, and to determine the student's placement. The parent participated in the meeting. The district's previous evaluation of the student was completed on May 15, 1996. On February 23, 1999, the IEP team determined that the complainant's son continued to have an impairment in the area of learning disability and the need for special education. However, the IEP team determined that the student no longer had a disability on the basis of a speech and language impairment. The student's IEP was in effect for the period beginning February 24, 1999, and ending February 24, 2000. On February 24, 1999, the district provided the parent with a copy of the student's February 23, 1999, evaluation report and IEP, along with the student's placement notice.

The complainant alleges that the district failed to inform the parent of her son's progress toward his annual goals and the extent to which that progress is sufficient to enable him to achieve the annual goals by the end of the 1999-2000 school year. The student's IEPs that were in effect during the 1999-2000 school year include the following procedures for informing parents of the student's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year:

Quarterly Reports/PT Conferences, phone calls or written notes as necessary; or

Parents will be notified by phone calls, notes, parent teacher conferences, report cards, and/or notes sent home with report card.

The district provided the parent with written progress reports on the student's annual goals on September 30, 1999, and May 25, 2000, which represent the first and fourth quarters of the school year. The written progress reports list the student's annual goals and include a comment section for a description of student's progress toward the annual goal and the extent to which that progress is sufficient to enable the student to achieve the goal by the end of the IEP. Under the student's first annual goal the special education teacher described the student's progress as "adequate progress being made;" under the student's second annual goal the special education teacher described the student's progress as "(Student) is a hard worker and doing a nice job;" under the student's third annual goal the special education teacher described the student's progress as "(student) is doing a good job in math, he works very hard;" and under the student's fourth annual goal the special education teacher described the student's progress as "(student) needs to take his time when doing his lesson and study for weekly tests." The student's progress for the second quarter was reviewed with the parent on November 4, 1999, when parent attended a parent-teacher conference. During the third quarter, an IEP meeting was held at which time the annual goals were reviewed with the parent.

The complainant further alleges that she was not an equal participant in the development of her son's February 24, 2000, IEP, as the special education services, supplementary aids and services, and placement were predetermined by district staff and presented to the parent at the IEP team meeting. On February 24, 2000, the district conducted an IEP team meeting to develop the complainant's son's IEP and to determine his placement. The parent participated in the meeting. Documentation shows that the district made numerous attempts to arrange an IEP meeting at the convenience of the parent. The special education teacher made a rough draft of the student's IEP before the meeting, so that she would have a guideline to use at the meeting. The special education teacher asked the parent for input at the meeting on her son's IEP, including the cover page, and any parent questions or concerns regarding modifications, annual goals, and short-term objectives. Prior to the IEP meeting, the parent requested that she would like to have her son's 7th grade science text highlighted. At the IEP meeting, the modification was considered and was included in her son's revised IEP. The special education teacher further indicated to the parent that if she had any questions upon receiving the new IEP and placement offer in the mail to let her know as soon as possible, so that the teacher could make sure everything was in order and agreed to by all parties. District staff indicated that the parent agreed with the outcome of the meeting and appeared to leave the meeting in agreement with the decisions that were made.

The complainant further alleges the district failed to inform her of her right to additional time at the beginning of the February 24, 2000, IEP team meeting. District staff indicated that the parent was informed of her right to additional time at the beginning of the IEP team meeting. The cover page of the student's February 24, 2000, IEP also documents that the district informed the parent of her right of additional time if needed.

The complainant finally alleges that the district failed to provide her with a copy of her son's evaluation report with the February 24, 2000, notice of placement. On February 23, 1999, the IEP team re-evaluated, developed an IEP, and determined placement for complainant's son. The cover page of the IEP documents that copies of the student's evaluation report and IEP were given to the parent with a copy of the placement notice on February 23, 1999. On February 24, 2000, the district sent the parent a notice of placement following the IEP meeting to revise the student's IEP. The placement notice that was sent to the parent indicates both that the parent had previously received a copy of the evaluation report and that a copy of the evaluation report was enclosed with this placement notice. The district indicated that an error was made in checking the box indicating that a copy of the evaluation report was enclosed, since the parent had already received a copy on February 23, 1999.

CONCLUSION:

The parents of a child with a disability are equal participants along with school personnel in developing their child's IEP. This is an active role in which parents join with other IEP team members in discussing the child's need for special education and related services, in deciding what services the district will provide the child, and in determining the child's placement. At the beginning of any IEP team meeting, a local education agency (LEA) must inform parents of their right to be provided with additional time in order to permit meaningful parent participation. The LEA is required to reevaluate a child with a disability at least once every three years. If any IEP team participant requests a copy of the evaluation report at any point in the process of developing the child's IEP or considering the child's educational placement, the district must give a copy of the report to each IEP team participant before continuing the process. If no IEP team participant requests a copy of the evaluation report, the district must provide a copy of the evaluation report to the child's parents with the notice of placement. A child's IEP also must include a statement of how the parents will be regularly informed, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the annual goals.

Issue #1 deals with the complainant's allegation that the district failed to include the parent as an equal participant in the development of her son's February 24, 2000, IEP, as the special education services, supplementary aids and services, and placement were predetermined by district staff and presented at the IEP team meeting. District staff may come to an IEP meeting prepared with recommendations regarding the IEP content, but the district must make it clear to the parents at the outset of the meeting that the services proposed by the district are only recommendations for review and discussion with the parents. Parents have the right to a full discussion of the student's needs and the services to be provided to meet those needs before the IEP is finalized. The parent attended her son's February 24, 2000, IEP team meeting. The special education teacher brought a draft copy of the complainant's son's IEP to the meeting. The special education teacher attempted to solicit input from the parent regarding annual goals, short-term objectives, and modifications. Prior to the IEP meeting, the parent requested her son's science textbook be highlighted. This modification was incorporated into her son's IEP during the meeting. The parent was afforded the opportunity to participate even though she chose not to actively participate. The district correctly implemented the law related to issue #1.

Issue #3 deals with the allegation that the district failed to inform the parent of her son's progress toward his annual goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the 1999-2000 school year. The district provided the parent with written progress reports on her son's annual goals during the first and fourth quarters of the school year. The student's progress for the second and third quarters of the school year was reviewed with the parent during a parent-teacher conference and an IEP team meeting respectively. The written progress reports do not describe the student's progress toward all of his annual goals. In addition, the written progress reports do not describe the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the IEP. There is a violation with regard to issue #3.

Issue #4 alleges that the district failed to inform the parent of her right to additional time at the beginning of the February 24, 2000, IEP team meeting. The district staff who attended the meeting stated that the parent was informed of her right to additional time at the beginning of the IEP meeting. The cover page of the student's February 24, 2000, IEP also documents that the district informed the parent of her right to additional time if needed. The district correctly implemented the law related to issue #4.

Issue #6 alleges that the district failed to reevaluate the student at least once every three years.

The district completed the reevaluation of complainant's son on February 23, 1999. The previous evaluation of the student was completed on May 15, 1996. The district completed the student's reevaluation within the three year timeline. The district correctly implemented the law related to issue #6.

Issue #7 deals with the allegation that the district failed to provide the parent with a copy of her son's evaluation report with the February 23, 2000, notice of placement. On February 24, 2000, the district sent the parent a notice of placement following an IEP team meeting to revise her son's IEP. A purpose of this meeting was not to evaluate her son. The district reevaluated the complainant's son on February 23, 1999. The district sent the parent a copy of her son's evaluation report with the February 23, 1999, notice of placement. The district correctly implemented the law related to issue #7.

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ISSUE #2:

the district fail to provide the monthly monitoring of speech services as described in son's IEP for the 1999-2000 school year?

ISSUE #5:

Did the district fail to implement selected short-term objectives in the student's February 24, 2000, IEP, relating to the annual goals dealing with written language and spelling skills? Specifically, did the district fail to implement the following short-term objectives: (a) When given a journal entry or story starter, student will complete the writing assignment using correct punctuation spelling and usage with 80% accuracy or better; (b) When given new spelling words at the beginning of the week (student) will write down his words in ABC order with 80% accuracy or better; (c) When given his spelling words (student) will examine similarities and differences among them using a variety of activities with 80% accuracy or better; (d) When given his spelling words (student) will use dictation activities in order to further enhance his ability to understand and spell words in context with 80% accuracy or better; (e) When given his spelling words (student) will use a variety of activities to increase language comprehension with 80% accuracy or better; and (f) When given his final spelling test (student) will spell his words with 80% accuracy or better?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
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.

* * *

(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:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

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

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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 115.787, 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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(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.
(c) A statement of the special education and related services and supplementary aids and services to be provided to 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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34 CFR 300. 26 Special education.

(a) General. (1) As used in this part, the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including--

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(2) The term includes each of the following, if it meets the requirements of paragraph (a) (1) of this section:
(i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards.

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34 CFR 300.342 When IEPs must be in effect.

(a) General. At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that--
(1) An IEP--
(i) Is in effect before special education and related services are provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings described under § 300.343.

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(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of--
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Question 31.

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.

FINDINGS OF FACT:

On February 23, 1999, the district reevaluated the complainant's son. The parent participated in the meeting. The IEP team determined the student continued to have an impairment in the area of learning disability and the need for special education. However, the IEP team determined that the student no longer had a disability on the basis of a speech and language impairment. The student's IEP that was developed on February 23, 1999, was in effect for the period beginning February 24, 1999, and ending February 24, 2000. The student's IEP that was in effect for the 1999-2000 school year did not include speech and language services.

The student's IEP that was developed on February 24, 2000, includes annual goals and short-term objectives relating to written language and spelling skills. The complainant alleges that the district failed to implement the short-term objectives. The student's IEP includes an annual goal of increasing his written language skills by one year. A related short-term objective states: "When given a journal entry or story starter, student will complete the writing assignment using correct punctuation spelling and usage with 80% accuracy or better." This activity involved a creative writing assignment to make the student think about the future. An example of a journal entry or story starter could include a student's favorite day dream or favorite teacher. The journal entry or story starter objective was implemented during second semester when the student asked to write an autobiography. The student was given class time to work on his autobiography, and he was given story starters so he knew what to write about for each chapter. The student completed his autobiography.

Spelling consisted of weekly lessons in a workbook series entitled, Target Spelling, in which the student was given class time every Monday to work in the spelling workbook. When the student completed the lesson in the workbook each week, the student then gave the workbook to the special education teacher to correct. Every Friday the student was given a test on the spelling words from the workbook lesson that he completed on Monday. The student worked on the spelling workbook lessons until May 15, 2000, and completed a review of all the lessons in the workbook at the end of the school year. The student's IEP includes an annual goal of increasing his spelling skills by one year. A related short-term objective states "When given new spelling words at the beginning of the week (student) will write down his words in ABC order with 80% accuracy or better." The student was given a number of words (6 to 10 words) at the beginning of the week. The student was required to write the words in alphabetical order in the space given. The student completed these activities on a weekly basis.

Another related short-term objective dealing with spelling skills states "When given his spelling words (student) will examine similarities and differences among them using a variety of activities with 80% accuracy or better." After receiving a set of words, the student circled the words that had the same meaning and put a mark (X) on the words that had a different meaning. The student was required to understand the meaning of the words to complete the task. The student completed these activities.

Another related short-term objective dealing with spelling skills states "When given his spelling words (student) will use dictation activities in order to further enhance his ability to understand and spell words in context with 80% accuracy or better." This short-term objective was specifically associated with a lesson in the spelling workbook used by the student. The activities related to this objective required the student to practice writing words; to use each spelling word in a cursive sentence; to fill-in boxes or blanks with correct spelling words; and to find the missing letters and then write the correct word. The student completed these activities.

Another related short-term objective dealing with spelling skills states "When given his words (student) will use a variety of activities to increase language comprehension with 80% accuracy or better." This objective was specifically associated with a lesson in the spelling workbook used by the student. The activities related to this objective required the student to write spelling words that fit similar and different meanings; to finish a sentence with a word or words; to write each correct spelling word beside its clue; and to use correct spelling words to complete the story. The student completed these activities.

A final related objective dealing with spelling skills states "When given his final spelling test (student) will spell his words with 80% accuracy or better." The student was given a test at the end of each week. The student completed this activity.

CONCLUSION:

An LEA has a duty to provide a free appropriate public education to each resident child with a disability. An LEA 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 to be provided to the child. The IEP for a child with a disability must also include a statement of measurable annual goals, including benchmarks or short-term objectives. The district must implement the IEP provisions, including the annual goals and short-term objectives or benchmarks.

Issue #2 deals with the allegation that the district failed to provide monthly monitoring of speech services as described in complainant's son's IEP for the 1999-2000 school year. The student's IEP for the 1999-2000 school year does not include the provision of monthly monitoring of speech services. The district correctly implemented the law related to issue #2.

Issue #5 alleges that the district failed to implement selected short-term objectives in the student's February 24, 2000, IEP, relating to the annual goals dealing with written language and spelling skills. The district did provide instruction to address the short-term objectives relating to the annual goals dealing with written language and spelling skills. The objectives and associated activities for increasing written language and spelling skills were implemented and completed. The district correctly implemented the law related to issue #5.

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DIRECTIVE:

The Clear Lake School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that this student's parent and other parents of students with disabilities are informed of their student's progress toward their annual goals and the extent to which that progress is sufficient to enable this student and other students to achieve the goals by the end of the effective period of their IEPs.

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 MJT
3/14/01
_____________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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