IDEA Complaint Decision 01-010

On February 5 and 14, 2001, a complaint was filed with the Department of Public Instruction (department) by XXXXX against the Verona Area School District (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. During this investigation, department staff reviewed relevant education records of the child, documents submitted by the complainants, and the district's response and exhibits. Department staff spoke with the child's mother, the administrative law judge, the district's former director of pupil services, two speech/language therapists, the school psychologist, and the district's attorney.

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ISSUE #1:

Did the district fail to fully implement the due process hearing order dated January 28, 2000?

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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34 CFR 300.510 Finality of decision; appeal; impartial review.

(a) Finality of decision. A decision made in a hearing conducted pursuant to 300.507 or 300.520-300.528 is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraph (b) of this section and 300.512.

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34 CFR 300.661 Minimum State complaint procedures.

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(3) A complaint alleging a public agency's failure to implement a due process decision must be resolved by the SEA.

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Section PI 8.01, Wisconsin Administrative Code

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and hours of instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,137 hours of direct pupil instruction in grades 7 through 12. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

State Individuals with Disabilities Education Act (IDEA) Complaint No. 94-057, Superior School District, March 17, 1995.

A school district is required to provide a FAPE to each resident child with [a disability]. In order to provide a FAPE, a district must, in part, provide special education and related services that meet the statutes and rules enforced by the department. One of the rules enforced by the department requires a district to schedule annually at least 1,137 hours of instruction for children in grades 7 through 12. The rule states that the instructional hours are computed as the period from the start to the close of each pupil's daily instructional schedule, and that the lunch period is not included in this computation. A district may schedule fewer hours of instruction for a child with [a disability] only if the participants in the meeting to develop the child's IEP determine that the child's individual needs dictate that fewer hours be scheduled. Such a determination must be reflected in the child's IEP. Similarly, deviations from the normal school day, such as instruction during the lunch period, must be reflected in the child's IEP and must be made based upon the child's individual needs.

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FINDINGS OF FACT:

This complaint concerns the education of a 13-year-old child with autism. During the 1998-99 school year, the complainants educated the child at home. On August 2, 1999, the complainants entered into a Settlement Agreement with the district concerning the child's education. On November 2, 1999, the complainants filed a request with the department for a due process hearing, alleging that the district had failed to implement the Settlement Agreement.

On January 28, 2000, the administrative law judge (ALJ) issued an Order that "the Settlement Agreement be implemented as set forth in paragraph 15 above." Paragraph 15 states:

To facilitate a speedy resolution of this matter, and a return to school of the Student, the ALJ believes it is appropriate to amend the Settlement Agreement to include a timetable for its implementation. The new behavior management plan as described in paragraph 4 of the Settlement Agreement shall be developed within two weeks from the date of the Student's enrollment in a District school for more than three academic class periods, not including the lunch hour, per day. The provisions of paragraphs 5 through 7 shall be implemented within three weeks of the Student's enrollment for more than three academic class periods, not including the lunch hour. Further, a new IEP incorporating the plans and programs developed by the consultants shall be in place within 45 days of the Student's enrollment in at least three academic class periods as described above. (emphasis in original)

Paragraphs 4 through 7 of the Settlement Agreement essentially describe the district's commitment to retain four consultants to provide various services to the district related to the child's education program. Two of the paragraphs are silent as to the time period covered, while paragraphs 4 and 6 state that the district will consult with the providers "during the school year."

In this complaint, the complainants allege that the district has failed to fully implement paragraphs 4 through 7 of the Settlement Agreement, as required by the ALJ's January 28, 2000 Order. In its response to the complaint, the district states that it was not obligated to fulfill the obligations of paragraphs 4 through 7 because the student was not enrolled in more than three academic class periods per day, not including lunch, as required by the Order.

On February 14, 2000, the complainants sent the district a proposed daily school schedule for the student and stated that they would bring the student to school on February 17, 2000, to begin the new schedule. On February 16, 2000, the district's pupil services director responded to the complainants that "there are a few concerns with your request that must be clarified prior to [the student] beginning his 4 classes." The director recommended that the student begin the new schedule on February 28, 2000, because of "staff and scheduling changes" occurring during two weeks of district-wide testing beginning on February 17. The mother brought the student to school on February 17, and the pupil services director asked the mother to begin the new schedule after the district-wide testing was completed. The student began to transition into the new schedule on February 29, 2000.

Until this complaint was filed, the district did not inform the complainants that it did not believe the student's schedule complied with the "more than three academic class periods" prerequisite laid out in the ALJ's Order. The department contacted the ALJ for clarification of the clause, "the Student's enrollment in a District school for more than three academic class periods, not including the lunch hour, per day." The ALJ informed the department that the referenced clause refers to when the student begins attending more than three academic classes per day, not when the student begins attending school for more than three class periods per day. It does not appear that the student was attending more than three academic classes per day pursuant to the schedule begun on February 29, 2000.

After the student began increased attendance on February 29, 2000, the district retained the four consultants, as stated in the Order. For the remainder of the 1999-2000 school year, the consultants provided services to the district. The district has not continued to consult with the providers during the 2000-2001 school year, which the complainants allege is required by the Order. The ALJ informed the department that the Order was effective for the school year in which the student became enrolled for more than three academic class periods per day.

Several IEP team meetings were held to develop an IEP for the student, and the IEP was completed on May 18, 2000. The effective dates of the IEP are May 18, 2000 to May 17, 2001. The IEP was not developed within 45 days of the student's increased attendance on February 29, 2000. The May 18, 2000 IEP contains a daily class schedule that includes more than three academic classes per day. The student's schedule in the IEP reflects fewer than 1,137 hours of instruction annually. The IEP does not state that the student's needs dictate that he receive fewer than the statutorily required minimum hours of instruction.

CONCLUSION:

The decision of a hearing officer is final and binding on the parties, unless the decision is appealed. Here, the ALJ issued an Order that required the district to implement the Settlement Agreement according to a timetable. The timetable made the deadlines for district action contingent upon the complainants enrolling their son in school for more than three academic classes per day.

The complainants devised an increased academic class schedule for their son and attempted to begin following it on February 17, 2000. The district began to transition the student into the increased academic schedule on February 29, 2000. In an electronic mail message to the complainants about the schedule, the pupil services director referred to the student beginning "four classes." When the student began attending school per the increased class schedule, the district retained the four consultants and received services from them, in compliance with the Order.

As the result of several IEP team meetings, an IEP was completed for the student on May 18, 2000. The May 18, 2000 IEP contains a daily class schedule that includes more than three academic classes per day. The IEP was not developed within 45 days of the student's increased attendance beginning on February 29, 2000. However, it appears that the student did not begin attending more than three academic classes per day until May 18, 2000. The department concludes that the district acted consistent with the ALJ's Order.

State law requires a school district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A district may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP and must be based upon the child's individual needs.

The district must ensure a FAPE is provided to the student. While IEP teams generally reach consensus regarding services necessary to meet a student's needs, the district must ensure the student receives a FAPE even when parents disagree with the IEP team's decisions. When the district reconvenes the IEP team for the annual review and, if needed, revision of the student's IEP, the student's IEP should reflect fewer than the minimum hours of instruction only if the student's individual needs dicatate a reduced schedule.

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ISSUE #2:

During the current school year, did the district violate provisions of the child's IEP that require implementation by a speech and language therapist?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

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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 115.787, 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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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child

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PI 3.01, Wisconsin Administrative Code
Definitions.

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(45) "Teacher aide" means a person who performs a variety of duties under the direct supervision of a licensed teacher, except professional teaching responsibilities such as diagnosing educational needs, prescribing teaching and learning procedures, and evaluating the effects of teaching.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 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.

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FINDINGS OF FACT:

The student's 2000-2001 IEP requires that the student receive two 40-minute sessions per week, for four out of five weeks, of direct instruction in speech/language (S/L). A S/L therapist provides this direct instruction to the student. The student's IEP also contains goals and objectives related to S/L. A special education aide provides services to the student under the supervision of certified teachers to support the student's progress toward meeting the IEP goals and objectives. The student's aide does not perform professional teaching duties.

CONCLUSION:

A local educational agency (LEA) must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child, in part, by providing special education and related services in conformity with a proper IEP.

A S/L therapist provides direct S/L instruction to the student in the amount required by his 2000-2001 IEP. A special education aide provides services to the student under the supervision of certified teachers to support the student's progress toward IEP goals and objectives. The aide does not perform professional teaching responsibilities. The district is providing S/L services to the student in conformity with his 2000-2001 IEP.

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ISSUE #3:

In June 2000 and in January 2001, did the district fail to provide the complainants with full access to their child's education records?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wisconsin Statutes
Pupil records.

(1) DEFINITIONS. In this section:

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(d) "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under 115.28 (7) to hold a certificate, license or permit if such records and notes are not available to others, nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

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(2) CONFIDENTIALITY.

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(a) A pupil, or the parent or guardian of a minor pupil, shall, upon request, be shown and provided with a copy of the pupil's progress records. (b) An adult pupil or the parent or guardian of a minor pupil shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

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34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Education records"
(a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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"Record" means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

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34 CFR 300.560 Definitions.

As used in 300.560--300.577--

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(b) Education records means the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.501 Opportunity to examine records; * * *.

(a) General. The parents of a child with a disability shall be afforded, in accordance with the procedures of 300.562-300.569, an opportunity to--
(1) Inspect and review all education records with respect to--
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child * * *

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to 300.507 and 300.521-300.528, and in no case more than 45 days after the request has been made.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

45 CFR Part 121a, Appendix AAnalysis of Final Regulation, 121a.562, August 23, 1977, (42 FR 42505) [Predecessor to current 34 CFR 300.562.]

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Language has been added to make it clear that an agency must comply with a request for access before any meeting regarding an individualized education program. This will help insure that interested parents are able to familiarize themselves with their child's records prior to any meeting and be able to participate more knowledgeably.

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FINDINGS OF FACT:

On May 25, 2000, the complainants contacted the district's pupil services director requesting to review all of their son's education records. On June 2, 2000, the student's mother reviewed his education records at the district's administrative office. On that same date, the mother contacted the pupil services director stating that the education records made available for her review were limited to IEPs and one other form, and she again requested access to all of the student's education records, including audio tapes. In her response to the mother, the pupil services director stated that the complainants had received copies of all the student's education records at the time of the due process proceedings, held from November 1999 through January 2000.

On November 10, 2000, the complainants asked to review their son's education records. On November 13, 2000, the district responded to the complainants, asking them to identify which records they wished to review and directing them to contact the administrative office to schedule an appointment to review the records. On November 21 and 30 and December 18, 2000, the complainants contacted the pupil services director asking when they could review all of their son's education records, including speech and language progress notes.

On January 5, 2001, the complainants again contacted the pupil services director asking to review all of the student's records on January 10, 2001. On January 11, 2001, the mother reviewed the student's records at the administrative office with the pupil services director present. On March 15, 2001, the district sent the complainants copies of audiotapes of recent IEP meetings and a summary of speech and language "data probes."

CONCLUSION:

An LEA is required to provide parents of a child with disability, on request, access to their child's education records without unnecessary delay and before any meeting regarding an IEP or a due process hearing and in no case more than 45 days after the request has been made. Education records include any information directly related to the student and maintained by an educational agency.

The district did not provide the complainants with access to all of the student's education records, particularly audiotapes related to the student, within 45 days of the complainants' requests.

DIRECTIVE:

The Verona Area 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 provides the complainants and all parents of children with disabilities with full access to their children's education records without unnecessary delay and in no case more than 45 days after a request has been made.

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 the department has approved it.

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
4/6/01

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