IDEA Complaint Decision 00-039

On May 22, 2000 (letter dated May 1, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Siren 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 local educational agency's compliance with state and federal requirements. In investigating this complaint, the department reviewed relevant portions of the child's education records. Department staff interviewed the school district's former director of special education; the school district administrator; the IEP team coordinator; the elementary school principal and the guidance counselor; the junior/senior high school principal; the child's fifth grade reading and language arts teacher; and sixth and seventh grade teachers.

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ISSUE #1:

the district fail to ensure that her client was referred for a special education evaluation prior to January 2000?

ISSUE #2:

the district fail to provide the child the protection of the IDEA during the 1999-2000 school year when the district repeatedly suspended the child from school?

ISSUE #3:

the district fail to ensure that the district employee who submitted a referral for a special education evaluation of the child in January 2000 informed the child's parent, prior to submitting the referral?

ISSUE #4:

the district fail to provide the child's parent in January 2000 with a procedural safeguards notice as required by § 115.792(3), Wis. Stats.?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 3.01
Definitions.

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(44) "Teacher" means a licensed professional school employee whose work includes the exercise of any educational function for compensation including instructing pupils or administering, directing, or supervising any educational activity.

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Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(3) "Child" means any person who is at least 3 years old but not yet 22 years old and who has not graduated from high school.

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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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(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:
(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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((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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(f) Establishes written policies and procedures for implementing this subchapter and applicable federal law.

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Section 115.777, Wisconsin Statutes
Special education referrals.

(1) (a) A physician, nurse, psychologist, social worker or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability shall refer the child to the local educational agency.

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(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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(2) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.
(b) Before submitting a referral to a local educational agency under sub. (1) (a) or (b), a person required to make a referral under sub. (1) (a) or (b) shall inform the child's parent that he or she is going to submit the referral.

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(3) A local educational agency shall do all of the following:

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(c) Provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency's referral procedures.

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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 115.792, Wisconsin Statutes
Procedural Safeguards.

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(3) PROCEDURAL SAFEGUARDS NOTICE. (a) In this subsection, "local educational agency" includes the nonresident school district that a child is attending under § 118.51.
(b) The local educational agency shall give to the parents of a child with a disability, upon the child's initial referral for evaluation, upon each notification of an individualized education program meeting and upon reevaluation of the child, a full explanation written so as to be easily understood by the general public, and in the native language of the child's parents unless it clearly is not feasible to do so, of the procedural safeguards available under this section and under applicable federal law relating to all of the following:
1. Independent educational evaluation.
2. Prior written notice.
3. Parental consent.
4. Access to educational records.
5. Opportunity to present complaints.
6. The child's placement during pendency of due process proceedings.
7. Procedures for pupils who are subject to placement in interim alternative educational settings under 20 USC 1415 (k).
8. Requirements for the unilateral placement by parents of pupils in private schools at public expense.
9. Mediation.
10. Hearings under § 115.80.
11. Civil actions.
12. Attorney fees.

34 CFR 300.125 Child find.

(a) General requirement. (1) The State must have in effect policies and procedures to ensure that--
(i) All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
(2) The requirements of paragraph (a)(1) of this section apply to--
(i) Highly mobile children with disabilities (such as migrant and homeless children); and
(ii) Children who are suspected of being a child with a disability under Sec. 300.7 and in need of special education, even though they are advancing from grade to grade.

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34 CFR 300.220 Consistency with State policies.

(a) General. The LEA, in providing for the education of children with disabilities within its jurisdiction, must have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under §§ 300.121-300.156.
(b) Policies on file with SEA. The LEA must have on file with the SEA the policies and procedures described in paragraph (a) of this section.

34 CFR 300.527 Protections for children not yet eligible for special education and related services.

(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in §§ 300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if--
(1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services;
(2) The behavior or performance of the child demonstrates the need for these services, in accordance with § 300.7;
(3) The parent of the child has requested an evaluation of the child pursuant to §§ 300.530-300.536; or
(4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency--
(1) Either--
(i) Conducted an evaluation under §§ 300.530-300.536, and determined that the child was not a child with a disability under this part; or
(ii) Determined that an evaluation was not necessary; and
(2) Provided notice to the child's parents of its determination under paragraph (c)(1) of this section, consistent with § 300.503.
(d) Conditions that apply if no basis of knowledge. (1) General. If an LEA does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this section.
(2) Limitations. (i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under § 300.520 or 300.521, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, including the requirements of §§ 300.520-300.529 and section 612(a)(1)(A) of the Act.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

IDEA, Part B — Attachment I — Analysis of Comments and Changes (p. 12629)

"…a public agency will not be considered to have a basis of knowledge under paragraph (b) of this section merely because a child receives services under some other program designed to provide compensatory or remedial services.…"

Department of Public Instruction, Policies and Procedures: Individuals with Disabilities Education Act, Section VIII. Confidentiality

It is the policy of the State of Wisconsin that all pupil records collected, maintained, or used by a public school agency shall be confidential. Bulletin 98.02, "Pupil Records of Children with Exceptional Educational Needs" addresses the most frequently asked questions around pupil records.

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Letter to the Honorable Herbert Kohl from Tricia Yates, Department of Public Instruction, December 1, 1995.

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School districts have the following responsibilities for children in home-based programs who are residents of the district:

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2. For children who have suspected exceptional educational needs, the district must conduct a multidisciplinary team evaluation to determine if a child has a handicapping condition and a resulting need for special education.

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FINDINGS OF FACT:

General Child Find Activities

In response to the department's request for the district's written procedures for accepting and processing referrals, the district submitted its school board policy relating to referral, which states "The local educational agency has written procedures for accepting and processing referrals." The school district did not submit to the department any written procedures for accepting and processing referrals.

On August 18, 1998, and again on August 19, 1999, the district's director of special education spoke with district staff about the district's referral and evaluation process, including characteristics that might indicate that a child is a child with a disability. The director conducted this training annually.

Child-specific Facts

The youth whose education is the subject of this complaint was a sixth grader attending the Siren Elementary School during the 1998-1999 school year. During the school year, she was suspended from the school bus on several occasions and was suspended out of school for a total of eight days. She exhibited inappropriate behaviors that included possession of tobacco, defiance of school authorities, vulgar language, fighting, leaving the school grounds without permission, tardiness, and truancy. School staff had many meetings with the youth's parents to discuss what could be done to improve the youth's behavior. The school staff suggested professional counseling to the parents, but the youth did not receive counseling. The school made tutoring available. The youth stopped participating after a few sessions. The youth participated in a five-week school program, including school guidance services, for children having discipline problems.

On March 3, 1999, the principal limited her participation in extracurricular activities to activities that provide direct supervision. This action was taken because of her inappropriate behavior on February 26. On April 29, the principal informed the youth's parents that the youth would not be allowed to participate in after-school activities without parental supervision after she broke a window in a door at school. At the end of the year, she passed 9 of 11 subject areas, failing social studies and art. Teachers' comments describe her as "capable" and "skilled," but putting forth little effort. The guidance counselor sent the parents summer school information, but the child did not attend summer school. She was promoted to seventh grade. There is no evidence that the youth's parents' sought a special education evaluation for her.

The child's sixth-grade teachers did not believe the youth to be a child with a disability. Therefore, they did not refer her for a special education evaluation. In an interview with department staff, the principal of the child's elementary school stated that during the school year, he raised the issue of a special education evaluation with the child's sixth grade teachers, and none of them believed that the child was a child with a disability. In separate interviews with department staff, the youth's sixth grade class teacher and music, physical education, and language arts teachers, and guidance counselor all stated that they did not believe the child to be a child with a disability. All stated that they were familiar with behavioral characteristics that may indicate a disability and were aware of how to refer a child for a special education evaluation. Department staff also interviewed the child's fifth grade teacher, who also taught the child in second grade. She also did not believe the child to be a child with a disability. Prior to teaching in the regular education program, the teacher had been a special education teacher for children with emotional disturbance.

During the 1999-2000 school year, the youth attended Siren Junior/Senior High School. On August 27, 1999, she was arrested for disorderly conduct after an incident on school grounds. On August 30 she was arrested for battery and harassment of another youth at school. From the beginning of the school year until January 12, 2000, the youth was a suspended from school a total of 21 days for noncompliant behavior, including refusing to follow the directions of teachers and administrators, assaulting and harassing another student, vulgar language, refusing to serve detentions, and habitual tardiness. Sixteen of the 21 days of suspension occurred between August 31 and October 19, 1999. School officials warned the youth's parents in an October 6, 1999, meeting that her continued misbehavior could lead to expulsion, and they discussed professional counseling for the youth. School staff suggested counseling on other occasions and offered to arrange counseling appointments for them.

After the first quarter of the school year, the youth had failing grades in all courses. The school recommended that the youth attend an after-school tutoring program. The youth did not attend. In November 1999 in response to her tardiness, the school established a discipline program for the youth. The district's native-American home-school coordinator and the Title IX tutor contacted the youth several times during the school year to encourage the youth to come for help. She did not participate. School officials routinely mailed discipline reports to parents between September 15, 1999, and January 6, 2000, and they conferred at least ten times with them about the youth's behavior and how to help the youth.

In its response to this complaint, the district states that the child's seventh grade teachers did not believe the youth to be a child with a disability. In an interview with department staff, the child's seventh grade science and social studies teacher expressed some concerns about the child's behavior and emotions, but also stated that the concerns were not sufficient to cause her to believe that the child is a child with a disability. In separate interviews with department staff, the child's seventh grade math, reading, language arts, and keyboarding class teachers all stated that they did not believe the child to be a child with a disability. All stated that they were familiar with characteristics that may indicate a disability and were aware of how to refer a child for a special education evaluation. The youth's parents' did not request a special education evaluation for her during the 1999-2000 school year.

On January 6, 2000, the youth was suspended through January 12 for noncompliant behavior, and the principal and father met to discuss the youth's continued misbehavior. The principal stated that he would provide information about the youth to the school district superintendent to review for possible expulsion. In its response to the complaint, the district states that the principal informed the father when they met that the youth would be referred for a special education evaluation. A January 6, 2000, school discipline report about the youth states: "The district would also like to refer (child's name) for testing to see if there is in fact a need for special education." In its response to the complaint, the district states that a copy of this report was sent to the parent on January 6.

On January 10, 2000, the principal referred the youth for a special education evaluation. The youth's written referral for a special education evaluation indicates that on January 6 the parent was informed in writing of the impending referral. The district did not submit to the department evidence that it sent the parents a notice of appointment of an IEP team and a procedural safeguard notice. The IEP team coordinator routinely arranges a meeting with the parents of a newly-referred child to explain the IEP team process and the parents' rights and to obtain their input. At the meeting the coordinator provides the parents with a notice of the procedural safeguards available under special education law. When the district's IEP team coordinator called the youth's father on January 11 to arrange a meeting, she was informed that the youth was residing in Minnesota and attending school there. The parents declined an evaluation for the youth. The IEP team coordinator offered to proceed with an evaluation if the youth returned to live in the school district. Because the parents did not agree to meet about the referral, and because the youth's father informed her that the child was living outside the school district, the coordinator did not provide the parents with a procedural safeguard notice. On January 19, 2000, the district received a request for the youth's education records from a school in Minnesota.

On or about February 1, 2000, the youth's father called the school district to inquire about enrolling the youth in a home-based private education program. The child returned to the parent's home. On February 16, 2000, the parents sent the Department of Public Instruction a home-based private education program enrollment form. The district did not initiate a special education evaluation and appoint an IEP team because the child was in a home-based private education program. The youth began attending the Siren Junior High School at the beginning of the 2000-2001 school year. In its June 27, 2000, response to this complaint, the school district affirms its willingness to evaluate the youth for special education. The district appointed an IEP team to evaluate the child and sent the parents a procedural safeguard notice on September 15, 2000.

CONCLUSION:

An LEA must identify, locate, and evaluate all resident children with disabilities who are in need of special education and related services, including children in home-based private education programs, and make available to each child with a disability free appropriate public education. In order to carry out this duty, an LEA conducts "child find" activities, including individual evaluations of children.

Procedures to locate and identify children with disabilities are directed at licensed teachers working for the LEA and parents and non-LEA employees who are required under state law to refer children for special education evaluations. LEAs are required to have written procedures for accepting and processing referrals for special education evaluations from these individuals. The district has not established these written procedures. There is a violation regarding this aspect of issue #1.

An LEA is required to provide information and inservice opportunities to its licensed employees to familiarize them with the LEA's referral procedures. For the 1998-1999 school year, the district provided such information to its licensed employees at an August 18, 1998, staff meeting. For the 1999-2000 school year, the district provided such information to its licensed employees at an August 19, 1999, staff meeting. There is no violation in this regard.

A teacher employed by the school district is required to refer a student for an evaluation if he or she reasonably believes the student may be a child with a disability. The child's teachers were aware of the behavioral characteristics that may indicate a disability. They did not believe the child to be a child with a disability prior to January 2000; therefore, they did not refer the child for an evaluation. There is no violation in this regard.

Issue #2

Wisconsin schools must be safe and disciplined. The provisions in special education law strike an appropriate balance between providing a safe and orderly learning environment for all students and safeguarding the rights of disabled students and their parents.

An LEA must follow special education law when disciplining a student not yet determined to be eligible for special education and related services if the LEA had knowledge that the child is a child with a disability before the behavior that triggered disciplinary action. If the LEA does not have such knowledge, then the LEA may discipline the child without observing the requirements of the IDEA.

An LEA is deemed to have knowledge that a child is a child with a disability if (1) the parent of the student has expressed concern in writing to personnel of the LEA that the student needs special education and related services or the parent requested a special education evaluation, (2) the behavior or performance of the student demonstrates the need for such services, or (3) the teacher of the student, or other LEA personnel of the LEA, has expressed concern about the behavior or performance of the child to the director of special education or to other LEA personnel responsible for the LEA's child find and referral system. An LEA is not deemed to have a basis of knowledge merely because the child receives services under some other program designed to provide compensatory or remedial services. If the LEA has knowledge that the child is a child with a disability under IDEA, then it must ensure that child is evaluated to determine eligibility for special education and related services.

The child was referred for a special education evaluation on January 10, 1999, after repeated infractions resulting in suspensions in the fall of 1999. The parents did not express concern in writing to the district regarding the youth's need for special education and related services or request an evaluation under IDEA prior to the suspensions. None of the child's teachers believed the child to be a child with a disability prior to the suspensions. The LEA did not have knowledge that the child is a child with a disability under IDEA; and therefore, the district was not required to observe the requirements of the IDEA when disciplining the child prior to January 10, 2000. There is no violation with regard to issue 2.

Issue #3

State law requires that before submitting a referral for a special education evaluation, a person required to make referrals informs the child's parent that a referral will be made. There is no requirement that this information be given in writing. In a meeting on January 6, 2000, the principal of the youth's school informed the youth's father that the youth would be referred for a special education evaluation. Further, a January 6 discipline report sent to the parents states the district's intent to refer the child for a special education evaluation. The principal referred the child on January 10, 2000. There is no violation with regard to issue #3.

Issue #4

The law requires a local educational agency to identify and evaluate each child with a disability within its jurisdiction, including a child in a home-based private education program. A local educational agency must appoint an IEP team to evaluate a child when it receives a referral for a special education evaluation. The law also requires that the child's local educational agency give the parents, upon the child's initial referral for evaluation and at other specified times, a full explanation of the procedural safeguards available under special education law consistent with 34 CFR 300.504.

The youth's school principal submitted a special education referral for the youth on January 10, 2000. On January 11 the IEP team coordinator called her father to arrange a meeting. The youth's father informed the district that the youth no longer resided in the district and declined an evaluation for the youth. On or about February 1, 2000, school district officials learned that the child was again living at home. The district did not initiate an evaluation and provide the parents a procedural safeguards notice when district officials learned that the child had returned, because the parents enrolled the youth in a home-based private education program. A home-based private education program is not a public or a private school. However, child find obligations, including requirements relating to evaluation, extend to children enrolled in home-based private education programs in the district. Therefore, the district was obligated to appoint an IEP team and provide the parents with a procedural safeguards notice, pursuant to the January 10, 2000, referral. There is a violation with regard to issue #4. The district has appointed an IEP team to evaluate the child and has sent the parents an explanation of the special education procedural safeguards.

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DIRECTIVE:

The Siren School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) that ensures:

  1. The district develops written procedures for accepting and processing referrals, including referrals of children in home-based private education programs (issue 1);
  2. The district appoints an IEP team for children in home-based private education programs in the district who have been referred for a special education evaluation (issue 4);
  3. The district promptly completes an evaluation of the child whose education is the subject of this complaint, pursuant to the January 2000 referral (issue 4); and
  4. If the child is found to be a child with a disability, a district IEP team considers additional services that may be required to address the delay in identifying the child as a child with a disability (issue #4).

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 MJT
9/22/00
_____________________________________________
Michael 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