IDEA Complaint Decision 00-062

On November 17, 2000 (letter dated November 17, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Lake Geneva Jt1 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.

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ISSUE #1:

Did the district, on or about November 15, 2000, fail to afford the complainants the opportunity to participate in an IEP team meeting regarding their child?

ISSUE #2:

Did the district, on or about November 15, 2000, fail to ensure that an IEP team conducted a manifestation determination review relating to the child and determine the child's special education program and placement?

ISSUE #3:

Did the district, on or about November 15, 2000, fail to provide the complainants with proper notice of their child's placement?

APPLICABLE STATUTES AND RULES:

34 CFR 300.345 Parent participation.

(a) Public agency responsibility. Each public agency shall take steps to ensure that one or both of the parents of the 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

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(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.

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34 CFR 300.523 Manifestation determination review.

(a) General. If an action is contemplated regarding behavior described in  300.520(a)(2) or 300.521, or involving a removal that constitutes a change of placement under 300.519 for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children--

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(2) Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.
(b) Individuals to carry out review. A review described in paragraph (a) of this section must be conducted by the IEP team and other qualified personnel in a meeting.

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(e) Meeting. The review described in paragraph (a) of this section may be conducted at the same IEP meeting that is convened under 300.520(b).

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Section 115.792, Wisconsin Statutes
Procedural safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child.

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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.

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Department of Public Instruction, Learning Support/Equity and Advocacy. Information Update Bulletin 00.02, May 2000, Questions 21, 22, & 23.

21. Before expelling a child with a disability, must the local educational agency consider the relationship between the child's disability and the behavior subject to expulsion?

Yes. Before expelling a child with a disability, an IEP team and other qualified professionals must first determine that the behavior subject to expulsion is not a manifestation of the child's disability. The local educational agency should maintain a record of the IEP team's deliberations and findings. If the team believes additional evaluations are necessary in order to determine whether the child's misbehavior is a manifestation of the disability, then evaluations should be performed prior to any such determination. If the IEP team concludes that the behavior is a manifestation of the child's disability, the child may not be expelled. However, the child's IEP and placement may be modified, as appropriate, through the IEP team process.

22. What information must an IEP team consider when it conducts a manifestation determination?

The IEP team must consider all relevant information concerning the behavior subject to expulsion, including-

  • evaluation and diagnostic results, including the results or other relevant information from the parents of the child;
  • observations of the child; and
  • the child's individualized education program and placement.

If, in conducting the manifestation determination, the IEP team identifies deficiencies in the child's IEP or placement or in their implementation, the local educational agency must correct those deficiencies immediately.

23. What standard does the IEP team use to determine whether the child's behavior is a manifestation of the child's disability?

The behavior is not a manifestation of the child's disability only if the IEP team determines all of the following:

  • In relationship to the behavior subject to disciplinary action, the child's individualized education program and placement were appropriate, and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's individualized education program and placement;
  • The child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
  • The child's disability did not impair the ability of the child to control the behavior subject to disciplinary. action.

FINDINGS OF FACT:

This complaint concerns the education of a nine-year-old child with an emotional disturbance who resides in the Lake Geneva Jt1 School District. On October 11, 2000, it is alleged that this student brought a knife to school, displayed the knife, and gave it to a classmate. The student was suspended from school for five days pending a pre-expulsion meeting.

On November 15, 2000, an IEP team meeting was held to review and, as appropriate, revise the child's IEP, conduct a manifestation determination review, and determine placement. The child's parents did not attend the meeting. Lake Geneva Jt1 School District attempted to ensure the child's parents participated in the scheduled November 15, 2000, manifestation meeting. Phone calls were placed previous to and on the day of the meeting. These attempts were unsuccessful and no messages were left. A note was sent home with the student on November 14, 2000. In a letter dated November 17, 2000, the parent indicated that she received the note on November 14, 2000, one day prior to the meeting. The note did not indicate the purpose of the meeting other than to, "talk about options¿." There was no indication who would be attending the meeting. The time and place of the meeting was indicated in the note. The district received no response to this note. Two attempted phone calls were made to the complainant's residence on the date of the meeting. According to Lake Geneva Jt1 School District records, the complainant previously indicated that she no longer was interested in attending meetings regarding her child. She also informed the district that she did not plan to attend a possible expulsion hearing.

At the November 15, 2000, meeting, the IEP team concluded that the child's IEP was appropriate but that his placement was not. It also was determined that the student's disability does not impair his ability to understand the impact and consequences of the behavior subject to disciplinary action, but that his disability impairs his ability to control the behavior subject to disciplinary action. The IEP team determined that the behavior subject to disciplinary action was, therefore, a manifestation of the student's disability. The IEP team completed a new notice of placement which provides that the IEP will be implemented at the pupil services office in the Lake Geneva School District with a projected date of implementation as soon as a teacher is hired. The director of pupil services informed the parent of the result of the manifestation meeting, including the change of placement, when the parent visited the director's office on November 15, 2000.

The complainant indicated her agreement with the alternative placement for her son during telephone conversations with the director of pupil services between November 15 and November 20, 2000. The district had established a tentative IEP review date for December 4, 2000, but the complainant and her son would be on vacation until December 5, 2000. The complainant requested that the alternative placement begin on their return and that future options be considered after the first of the year. A written notice of placement was sent to the complainant on November 15, 2000. The child's change in placement did not occur until after the notice was sent.

CONCLUSION:

When a local education agency (LEA) determines that a student's IEP needs to be reviewed and/or revised, the LEA must take steps to ensure that one or both of the parents of the child with a disability are present at each meeting or are afforded the opportunity to participate. Within a reasonable amount of time prior to the meeting, the LEA must notify the parents of the meeting; the notification must include the purpose, time, and location of the meeting, and who will be in attendance. An LEA may hold an IEP team meeting without a parent in attendance if the LEA has a record of its attempts to arrange a mutually agreed on time and place.

Here, the district never spoke to the parents in regard to the proposed IEP team meeting. They did send a note home with the complainant's child the night prior to the meeting. The note explained the meeting was to talk about options for their son before the expulsion hearing. The district failed to notify the parents of the meeting early enough to ensure that they would have an opportunity to attend, and the meeting was not scheduled at a mutually agreed on time and place. The note did not inform the complainant of the purpose of the IEP team meeting, other than to discuss options, or who would attend the meeting. There is a violation with regard to issue #1.

When a LEA contemplates a disciplinary removal that constitutes a change of placement for a child with a disability, the LEA is required to review the behavior of the child and make a "manifestation determination." During the manifestation determination, an IEP team must examine the relationship between the child's disability and the behavior subject to the disciplinary action. Prior to a disciplinary removal that constitutes a change of placement, the LEA must determine that the behavior at issue is not a manifestation of the child's disability.

In this case, the LEA proposed expulsion of the child, which would constitute a change of placement. The district completed a manifestation determination review relating to the child and determined the child's special education program and placement on November 15, 2000. There is no violation with regard to issue #2.

A school district must appoint an IEP team to determine the educational placement for a child with a disability. The placement decision must be made based on the child's IEP. With respect to the school building or facility, the IEP team must determine if the child's IEP can be implemented in the school the child would attend if the child were not disabled. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

Here, an IEP team determined a change in the child's placement on November 15, 2000. The district informed the parent of the IEP team findings and change of placement during a meeting with the director of pupil services on November 15, 2000. The district also sent a written notice before it changed the child's placement. There is a violation with regard to issue #3.

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DIRECTIVE:

The Lake Geneva Jt1 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:

  1. provides proper notice of IEP team meetings to the complainant and all parents of children with disabilities, in compliance with 34 CFR 300.345 (a)(1), (issue #1);
  2. provides the parents of children with disabilities proper notice of placement (issue #3).

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.

re-issued - MJT
3/15/01
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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