IDEA Complaint Decision 01-014

On March 1, 2001, a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. 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 documents and relevant education records submitted by the district as well as documents submitted by the complainant. Department staff interviewed four special education supervisors, an elementary school secretary, the child's special education teacher, a speech and language pathologist, an assistant principal, and the complainant.

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ISSUE #1:

Did the district improperly change the placement of a child with a disability for the 2000-2001 school year without conducting an individualized education program (IEP) team meeting?

APPLICABLE STATUTES AND RULES:

 

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 115.78, Wisconsin Statutes
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:

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(c) Determine the special education placement for the child under 115.79.

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program.

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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 INTERPETATIONS:

Department of Public Instruction, Information Update Bulletin 00.10, October 2000, Transfer Pupils with Disabilities, Question 9.

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9. If a pupil changes schools within a local educational agency for reasons unrelated to the pupil's IEP, must the agency conduct an IEP team meeting?

If a pupil changes schools because his or her residence changes to another attendance area within the local educational agency or if the pupil's program or school building closes, an IEP team meeting is not required if--
the pupil's new school building is the building that he or she would otherwise attend if not disabled; and
the pupil's IEP can be implemented as written in the new school building.

The local educational agency must notify the parents of its decision to implement the current IEP in the new school building. The agency may meet this obligation when a pupil changes schools by providing the parent a copy of the pupil's IEP and a notice of educational placement meeting the requirements of 115.792(2), Wis. Stats. If the parents are not satisfied with the new school, they may request an IEP team meeting to address the issue.

If the agency determines that the IEP cannot be implemented as written in the new school that the pupil would otherwise attend if not disabled, the agency must immediately conduct an IEP team meeting to determine the child's placement and to ensure there is no interruption in services.

FINDINGS OF FACT:

The child whose education is the subject of this investigation is a child with a disability who resides in the Milwaukee Public Schools (MPS) district. On May 16, 2000, an individualized education program (IEP) team meeting was conducted to develop the child's IEP and determine placement. The notice of placement states that the May 16, 2000, IEP would be implemented at Morgandale School. During the summer of 2000, the child's name was added to the list of children with a disability placed at Twenty-seventh Street School. This assignment was made to provide the child a Spanish speaking special education teacher and a self-contained integrated program. Neither the records submitted by the district nor the information provided by district staff during interviews indicate how the decision to assign the child to the building was made. Neither a local education agency (LEA) representative nor an IEP team reviewed the child's IEP and no notice of placement was sent to child's guardian. This building assignment is not the child's attendance area school and is not the result of the district's parent choice selection process. On September 19, 2000, the child's guardian enrolled the child at Twenty-seventh Street School, which the child began attending.

On February 20, 2001, the district conducted an IEP team meeting to review and revise the child's IEP. The child's guardian attended the IEP team meeting with a parent advocate. The IEP team determined that additional information was needed to make decisions. The IEP team meeting was recessed to collect additional information. On March 6, 2001, an IEP team meeting was held to review and revise the child's IEP. The child's guardian attended the IEP team meeting with a parent advocate. The IEP team revised the child's IEP, determined that the IEP services would continue to be delivered at the school the child was attending, and provided the child's guardian a notice of placement.

CONCLUSION:

A local educational agency (LEA) must appoint an IEP team for each child referred for special education services. The IEP team must determine the special education placement, including the school building, for a child with a disability. The placement decision must be made based on the child's IEP. The LEA must provide a child's parents or guardian 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. Under limited circumstances a district may change a child's building without conducting an IEP team meeting. If a child changes schools because his or her residence changes to another attendance area within the local educational agency or if the child's program or school building closes, an IEP team meeting is not required if: the child's new school building is the building that he or she would otherwise attend if not disabled; and the child's IEP can be implemented as written in the new school building.

Between May 16, 2000, and June 8, 2000, the child received services according to his IEP and placement. On August 23, 2000, the child was scheduled to continue to receive services according to his May 16, 2000, IEP at a different building. The district did not conduct an IEP team meeting to determine the child's placement and did not provide the child's guardian a notice of the placement change. The limited circumstances permitting changing a child's placement without conducting an IEP team meeting are not apparent in this instance. The district improperly changed the child's placement without conducting an IEP team meeting or providing the child's parents or guardian prior written notice of the educational placement of the child. On March 6, 2001, an IEP team revised the child's IEP, determined that the IEP services would continue to be delivered at the school the child was attending, and provided the child's guardian a notice of placement. The district has taken steps to correct this implementation error with regard to this child. In addition, the district has adopted a new policy and is implementing a corrective action plan to ensure appropriate placement procedures. An additional corrective action plan is not required.

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ISSUE #2:

Did the district fail to provide a child with a disability a free appropriate public education (FAPE) between October 1, 2000, and February 28, 2001, when the child had a significant number of school absences?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
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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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.

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Wisconsin Statute, Section 115.79
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program * * *.

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Wisconsin Statutes, Section 118.15
Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

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Wisconsin Statutes, Section 118.16
School attendance enforcement.

(1) In this section:
(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and 118.15 for part or all of 5 or more days on which school is held during a school semester.

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(c) "Truancy" means any absence of part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of  118.15.

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(2) The school attendance officer:
(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under 118.15.

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(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Individuals with Disabilities Education Act State Complaint No. 91-019, January 29, 1992.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program or if the child is unable to attend school for physical or emotional reasons, arrange for homebound instruction. If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

Individuals with Disabilities Education Act State Complaint No. 99-005, April 23, 1999.

When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child with FAPE.

FINDINGS OF FACT:

The child whose education is the subject of this investigation did not attend school for the first 18 days of the 2000-2001 school year. Between August 23, 2000, and February 28, 2001, there were 117 days of school. On September 19, 2000, the child entered Twenty-seventh Street School. The child was present at school on 56 days between September 19, 2000, and February 28, 2001. The child was absent excused on 15 days. The child was reported truant on 26 days. The child also was truant 18 days between August 23 and September 19, 2000. The child was truant for all or part of 5 days on which school was held during the first semester. State statute defines an habitual truant as a pupil who is absent from school without an acceptable excuse on part or all of 5 or more days on which school is held during a school semester. District staff notified the child's parent of the child's truancy through telephone calls. The district did not notify the parent by registered or certified mail when the child initially became an habitual truant. On October 26, 2000, a school social worker submitted a report that the child's mother was seeking a residential placement for the child and that the child would not be attending Twenty-seventh Street School.

On November 27, 2000, January 25, and February 6, 2001, a district truancy letter was sent to the child's parents. In December 2000, the child's guardian informed the district that the child would be taking a family trip to Mexico and would return to school on January 28, 2001. On January 19, 2001, the Twenty-seventh Street School special education supervisor received a call from a Stride Wrap Around Program employee who requested information about the child's special education placement for a court action.

On February 20, and March 6, 2001, the district conducted IEP team meetings to review and revise the child's IEP. The child's guardian attended the IEP team meetings with a parent advocate. The child's attendance, academic performance, and behavior were considered at the IEP team meetings. On March 6, 2001, the IEP team modified the child's IEP, determined that the IEP services would continue to be delivered at the school the child was attending, and provided the child's guardian a notice of placement.

CONCLUSION:

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, the district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. State statute defines an habitual truant as a pupil who is absent from school without an acceptable excuse on part or all of 5 or more days on which school is held during a school semester. A district is required to notify the child's parent by registered or certified mail when the child initially becomes an habitual truant.

Between August 23, 2000, and February 28, 2001, the child attended school 56 full days of 117 days of school. The child was absent excused on 15 days. The child was truant on 44 days. The child was truant for 23 days on which school was held during the first semester of the 2000-2001 school year. The child did not enter school until September 19, 2000. On August 30, 2000, the child was an habitual truant under state law. The district did not notify the child's parent by registered or certified mail when the child initially became an habitual truant. On November 27, 2000, the district first notified the child's parent by mail that the child was an habitual truant. On March 6, 2001, the district modified the child's IEP and placement at an IEP team meeting. The district did not take timely action to provide FAPE to the child when he had significant absences from school. In these regards the district failed to implement correctly the law related to Issue #2 of the complaint. The department has received corrective action materials from the district following other recent complaint investigations related to these implementation errors and will continue to work with the district to ensure that corrective measures result in proper implementation of the requirements of the law.

DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district conducts an IEP team meeting to consider whether the child whose education is the subject of this complaint requires additional services because of the delay in providing FAPE.

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
4/27/01

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