IDEA Complaint Decision 00-057

On September 18, 2000 (letter dated September 12, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Wheatland Joint #1 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, regular education teacher, special education teacher and school psychologist and relevant pupil records from the parents and the school district. Department staff also had discussions with the parent, assistant director of pupil services and school psychologist.

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

ISSUE #1:

Did the district fail to properly notify the parents of their son's May 10, 2000, individualized education program (IEP) team meeting?

ISSUE #2:

Did the district conduct a May 10, 2000, IEP team meeting and amend the complainants' son's March 15, 2000, evaluation report and IEP without the required participants?

APPLICABLE STATUTES AND RULES:

Section 115.78, Wisconsin Statutes
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. Each team shall consist of all of the following:
(a) The parents of the child.
(b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment.
(c) At least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability as specified in 115.76 (5) (a) or, where appropriate, at least one special education provider of the child.
(d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency.
(e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f).
(f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.
(g) Whenever appropriate, 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.

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.
2. Revise the individualized education program as appropriate¿

* * *

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, 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
(ii) Inform the parents of the provisions in 300.344 (a)(6) and (c) (relating to the participation of other individuals on the IEP team who have the knowledge or special expertise about the child).

* * *

(c) Other methods to ensure parent participation. If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls.
(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.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Attachment 1¿Analysis of Comments and Changes (64 FR 12587)

* * *

The key factor in 300.345 (a) is that public agencies effectively communicate with parents about the up-coming IEP meeting, and attempt to arrange a mutually agreed upon time and place for the meeting.

* * *


Letter to O'Connor, Office of Special Education Programs (OSEP), Department of Education, December 6, 1996, 26 IDELR 320.

* * *

Specifically, paragraph (b) of 34 CFR 300.345 requires public agencies to notify parents of the purpose, time, and location of their child's IEP meeting, and who will be in attendance, early enough to ensure their participation at the meeting. In meeting their obligations to ensure parent participation at IEP meetings, however, it is OSEP's position that public agencies are not required to provide a * * * written prior notice to parents.

* * *

FINDINGS OF FACT:

The child whose education is the subject of this complaint received special education services in the Wheatland Joint #1 School District during the 1999-2000 school year. On March 15, 2000, the district conducted an individualized education program (IEP) team meeting to reevaluate the child, to review the child's IEP, and to determine the child's placement. The IEP team determined that the child is a child with impairments in the areas of learning disabilities and other health impaired and the need for special education. The child's IEP was in effect for the period beginning March 15, 2000, and ending March 15, 2001. The child's parent participated in the IEP meeting, along with her advocate and a clinical psychologist.

On April 20, 2000, the school psychologist informed the complainant by voice mail that she wanted to meet with her to discuss some revisions to her son's IEP and evaluation report. No meeting date was mentioned at this time. On May 3, 2000, the school psychologist and the complainant spoke by telephone and agreed to meet on May 10, 2000. The school psychologist mentioned to the parent that the director of special education was requesting the meeting to address her son's seizure disorder and its impact on his educational performance and his ability to participate in nonacademic and extracurricular activities. The special education director had stated to the school psychologist that these revisions of the complainant's son's IEP were needed to address the issues in an Office of Civil Rights (OCR) complaint filed by the complainant against the Wheatland Joint #1 School District. The parent maintains that the meeting scheduled for May 10, 2000, was not intended to be an IEP team meeting, but a meeting in the school psychologist's office to discuss these issues further. The school psychologist maintains that the May 3, 2000, telephone conversation with the complainant was to arrange the May 10, 2000, IEP meeting.

On May 3, 2000, the district mailed the parent a written invitation to a May 10, 2000, IEP team meeting. The district's IEP invitation included the purpose, time and location of the meeting; it identified the individuals who would be in attendance; and it included the legal provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child. On May 6, 2000, the parent received the district's meeting notice. On May 10, 2000, at 7:30 a.m., the parent called the school psychologist's office and left a message on her voice mail machine that she would not be attending the IEP team meeting. The parent felt changes were not needed to her son's IEP. The parent also needed more time so her advocate and clinical psychologist could attend the meeting. The complainant also asked why the district was having an IEP team meeting for her son when an IEP team meeting was scheduled for three weeks later. Upon learning of the parent's unavailability at the May 10, 2000, IEP team meeting, the school psychologist telephoned the director of special education to ask him how to proceed. He indicated that the IEP participants should proceed with the meeting without the parent, since the parent had been notified and invited. The district did not try to reschedule the IEP meeting or use other methods to ensure the parent's participation.

On May 10, 2000, the district conducted an IEP team meeting. All invited participants were in attendance with the exception of the parent. The IEP participants included a regular education teacher, a special education teacher, and a local educational agency representative. The IEP team made revisions to the complainant's son's IEP and evaluation report. On the cover page of the IEP that was revised at this meeting, the district described its attempts to involve the parent as follows: April 20, 2000---Phone contact made to (parent) - left message regarding meeting request; May 3, 2000---Talked to (parent) via phone to set date; and May 3, 2000---Sent out IEP invitation via mail. On May 15, 2000, the parent received a copy her son's amended IEP and evaluation report. On May 31, 2000, the parent received a letter from OCR indicating that the allegation raised by the complainant had been resolved through the amended IEP of May 10, 2000, and that they were closing her complaint against the Wheatland Joint #1 School District.

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. The LEA must notify the parents of the meeting within a reasonable amount of time prior to 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's method of notification of IEP team meetings may be oral or written, or both, provided the notice contains the required information. If neither parent can attend the IEP team meeting, the district must use other methods to ensure parent participation, including individual or conference telephone calls. The district may conduct an IEP team meeting without the parent in attendance, if the district keeps a record of its attempts to contact the parents, such as detailed records of telephone calls made or attempted and the results of those calls, copies of correspondence sent to the parents and any responses received and detailed record of visits made to parent's home or place of employment and the results of those visits.

ISSUE #1 deals with the allegation that the district failed to properly notify the parents of their son's May 10, 2000, IEP team meeting. On May 3, 2000, the school psychologist and the parent spoke by telephone and agreed to a meeting on May 10, 2000, to discuss some revisions to her son's IEP and evaluation report. There was a misunderstanding by the parent as to whether the meeting was an IEP meeting or not. On May 3, 2000, the district mailed the parent a notice of the meeting. The district's written IEP invitation included the purpose, time and location of the meeting; it identified the individuals who would 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 parent received a written IEP invitation on May 6, 2000, for the May 10, 2000, IEP team meeting. Before the IEP meeting on May 10, 2000, the parent telephoned the school psychologist's office and left a message that she would not be attending the IEP meeting. The district held the meeting without the parent in attendance. Under the circumstances given that the parent agreed on May 3 to meet on May 10, 2000, district staff did take action sufficient to ensure that the parent was notified of the May 10, 2000, IEP meeting a reasonable amount of time prior to the meeting. Issue #1 is not substantiated.

ISSUE #2 deals with the allegation that the district conducted a May 10, 2000, IEP team meeting and amended the complainants' son's March 15, 2000, evaluation report and IEP without the required participants. On May 10, 2000, at 7:30 a.m., the parent called the school psychologist's office and left a voice mail message that she would be unable to attend the IEP meeting scheduled for later that morning. The district did not try to reschedule the IEP meeting or use other methods to ensure the parent's participation. The district's attempts to involve parent participation were not sufficient, because the attempts were prior to learning of the parent's nonattendance. On May 10, 2000, at 10:30 a.m., the district conducted the IEP team meeting. All required participants were in attendance with the exception of the parent. The district did not sufficiently attempt to involve parent participation in the May 10, 2000, IEP team meeting. Therefore, the district conducted the meeting without the required participants. Issue #2 is substantiated.

Because the child whose education is the subject of this complaint now attends school in another school district, the department will not direct the district to undertake corrective actions specific to this child. Instead the corrective action plan will be directed at all parents of children with disabilities in the Wheatland Joint #1 School District.

_______________

DIRECTIVE:

The Wheatland Joint #1 School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district affords the parents of children with disabilities the opportunity to participate in IEP team meetings and when the parents of children with disabilities cannot attend, the district uses other methods to ensure parent participation, including individual or conference telephone calls.

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 MJT/SJP
2/2/01
__________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

glch

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