On November 6, 2000 (letter dated November 3, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the [three] School Districts. 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 portions of the child's education records and other materials submitted by the districts.
APPLICABLE STATUTES AND RULES:
Wisconsin Statutes, Section 115.77
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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Wisconsin Statutes, Section 115.78
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.
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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.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under 115.777 or initiates a reevaluation of the child under 115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.
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34 CFR 300.343 IEP meetings.
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(b) Initial IEPs; provision of services. (1) Each public agency shall ensure that within a reasonable period of time following the agency's receipt of parent consent to an initial evaluation of a child--
(i) The child is evaluated; and
(ii) If determined eligible under this part, special education and related services are made available to the child in accordance with an IEP.
(2) In meeting the requirement in paragraph (b)(1) of this section, a meeting to develop an IEP for the child must be conducted within 30-days of a determination that the child needs special education and related services.
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34 CFR 300.534 Determination of eligibility.
(a) Upon completing the administration of tests and other evaluation materials--
(1) A group of qualified professionals and the parent of the child must determine whether the child is a child with a disability, as defined in 300.7; and
(2) The public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent.
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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:
Department of Public Instruction, Learning Support/Equity and Advocacy, Information Update Bulletin 99.01, February 1999, Participation of Children with Disabilities in the Full-Time Open Enrollment Program, Questions 7, 13, 14, and 15
7. Which district is responsible for making available free appropriate public education (FAPE) to the child?
While a child with a disability attends the nonresident district, under the open enrollment program, 118.51 Wis. Stats., the nonresident district is responsible for making FAPE available to the child. These duties include ensuring the child's special education and related services:
- are provided at public expense (at no cost to the child's parents) and under public supervision and direction;
- meet the standards of the Department of Public Instruction;
- include an appropriate preschool, elementary or secondary school education; and
- are provided in conformity with an IEP.
If the child would transfer back to the resident district, the resident district would be responsible again for ensuring FAPE.
13. If a child is referred for evaluation or reevaluation of a suspected disability, which district is responsible for the evaluation or reevaluation?
The nonresident district must appoint an IEP team to conduct an evaluation or reevaluation according to the requirements of state and federal law. The IEP team must collaborate with appropriate personnel designated by the resident district. One way to ensure this collaboration is for the nonresident district to include designated staff from the resident district as participants on the IEP team.
14. If the child is a child with a disability, which district is responsible for developing an IEP and providing a placement?
The IEP team of the nonresident district is responsible for developing an IEP and providing an educational placement for the child.
15. Which district has a duty to see that the child and the child's parents have available to them the procedural safeguards under special education law?
While the child is attending the nonresident district, the nonresident district must ensure that the child and the child's parents have available to them all of the procedural safeguards under special education law including:
- providing parents access to educational records;
- ensuring that parents may obtain independent educational evaluations;
- assigning a surrogate to act as the child's parent, when required;
- providing parents the opportunity to use mediation;
- providing parents prior written notice, when required;
- providing parents notice of the procedural safeguards available to parents, when required;
- ensuring that parental consent is obtained, when required;
- observing requirements relating to the child's placement during the pendency of due process proceedings; and
- implementing discipline procedures consistent with the requirements of federal law at 20 USC 1415(k).
FINDINGS OF FACT:
The facts in this complaint are unique. It involves an 8th grade student in a K-8 district who was enrolled in another K-8 district under the full-time open enrollment program and later graduated to a Union High School. The student currently attends the [x] UHS District. During the 1999-2000 school year, the youth whose education is the subject of this complaint, attended the [District1] School District as an open-enrolled student who resided in the [District2] School District. A [District1] School District individualized education program (IEP) team evaluated the student after receiving a referral from his parents on January 28, 2000. IEP team meetings were held on April 3, and May 8 and 23, 2000. On April 13, 2000, the child's parents agreed to an extension of the 90-day evaluation timeline until July 21, 2000. At the May 23rd meeting, the IEP team concluded the youth needs special education by reason of an other health impairment. The parents were sent the IEP team's evaluation report following the May 23, 2000, meeting. However, the IEP team did not develop an IEP and provide a placement notice.
The IEP team agreed that because the student would begin attending a union high school in the fall, the student's IEP should be developed by an IEP team at the [X] UHS District. A representative from the union high school participated in the meeting. Consequently, the [District1] School District IEP team did not develop an IEP for the student and determine his educational placement. The team's evaluation report was sent to parents following the meeting. The [District1] School District graduated the youth on June 2, 2000.
On May 25, 2000, the complainant informed the [X] UHS District of the need to form an IEP team and develop an IEP for their child. Because staff would not be available over the summer and the child's records had not been received, the [X] UHS District determined that the meeting would be conducted at the beginning of the 2000-2001 school year. The district did, however, propose to the parent that this student's needs might best be met through the Transitional Education Program, offered at the high school to regular education students.
On July 10, 2000, [X] UHS District received records from the [District1] district, including the IEP team evaluation report. By letter dated July 10, 2000, the district informed the parents that a meeting would be conducted at the beginning of the 2000-2001 school year. On August 15, 2000, the [X] UHS District sent a notice of receipt of referral and start of initial evaluation to the complainants. A notice that no additional tests were needed was sent to the complainants on August 17, 2000. By letter dated July 17, 2000, complainants requested the district to conduct an IEP team meeting to develop an IEP for their son based on the evaluation report developed by the [District1] School District. [X] UHS District sent a notice of response to an activity requested by parent to complainants on August 28, 2000, giving their reasons for conducting their own evaluation. On August 28, 2000, the child began attending high school in the district and received services through the transitional education program.
An IEP team meeting was held by [X] UHS District on September 27, 2000, which both parents attended. The evaluation report developed at this meeting states that the child does have an impairment of other health impairment, but that the child does not need special education. The team recommended that the youth be identified as having a disability under Section 504 of the Rehabilitation Act of 1973 and an individualized accommodation plan should be developed. The team also recommended that the youth should continue in the transitional education program.
The meeting was adjourned. On September 27, 2000, the [X] UHS District sent a notice of IEP team findings and related materials to the complainants.
[District2] School District:
The responsibility to provide FAPE, including evaluation, developing an IEP, and offering a placement for a student attending another district under the state's open enrollment program rests with the non-resident district of attendance. The non-resident district in this case was the [District1] School District. The complaint is not substantiated against the [District2] School District.
[District1] School District:
An LEA must document and date the receipt of each referral and appoint an IEP team for each child referred to it. The IEP team must evaluate the child, within the time period required by state law. The local educational agency must notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral. Before the expiration of the 90-day time limit, if the local educational agency needs an extension, it must inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of the time limit. An LEA must, within 30 days of the determination that a child needs special education, conduct an IEP team meeting to develop an IEP for the child. Further, the LEA had a duty to complete the evaluation process prior to graduating the youth.
On January 22, 2000, the LEA received the parents' referral letter, which starts the 90-day timeline requirement. On April 13, 2000, the child's parent agreed in writing to extend the time limit to July 21, 2000. On May 23, 2000, the IEP team concluded that the youth met the criteria for the impairment of other health impaired. The team also agreed that by reason of this impairment, the student needs special education. The [District1] district sent the parents the IEP team's evaluation report following the May 23, 2000, meeting. However, the IEP team did not meet to develop an IEP for the child within 30 days of determining that the child is a child with a disability. Within 30 days after eligibility determination, the district should have conducted another IEP team meeting which included participants from the union high school district to develop an IEP. There is a violation with regard to this element of the issue pertaining to the [District1] School District. The district will not be required to take corrective action relating to this student because he has now graduated from the district and been determined by another district not to be a child with a disability under IDEA.
[X] UHS District:
The complainants' child enrolled at [X] Union High School in the fall of the 2000-2001 school year. A representative from the [X] UHS was present at the May 23, 2000, IEP team meeting. [X] was, therefore, aware of the IEP team findings that this was a child with a disability. Knowing that this child would be attending [X] UHS school, they and the [District1] school were both obligated to develop an IEP and placement within 30 days of the determination that the child is a child with a disability.
Furthermore, the [X] UHS district received the child's records on July 10, 2000. The district had an obligation to have an IEP and placement completed prior to the start of the school year. This requirement applies despite the unavailability of staff during summer breaks. There is a violation with regard to this element of the issue pertaining to the [X] Union School District.
The district initiated another evaluation, which it had a right to do. However, pending completion of its evaluation, the district failed to ensure that the child had an IEP in place at the start of the school year. At the September 17, 2000, IEP team meeting, upon completion of the review of existing data, the [X] UHS IEP team concluded that the complainants child has an impairment, but did not require special education services. This decision does not address the propriety of the district's findings upon reevaluation.
The [District1] School District and the [X] UHS school districts shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district will evaluate children in accordance with 34 CFR 300.343 and 115.78(3), Wis. Stats.
Each 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.
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy