IDEA Complaint Decision 01-024

On March 23, 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 the complainant, the child's mother, a district special education supervisor and the child's special education teacher.

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ISSUE:

Did the district fail to provide the parent of a child with a disability, upon request, access to her child's educational records prior to a March 7, 2001, 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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(d) Subject to pars. (a) to (c), if the parents of the child or the local educational agency staff determines at any point during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency shall provide it.
(4) INFORMATION. At the beginning of any meeting to address the evaluation, individualized education program or placement of a child, the local educational agency staff shall inform the child's parents of their right to be provided with additional time under sub. (3) (d) and their right to a copy of the evaluation report under 115.782 (3) (b) or (c).

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Section 118.125, Wis. Stats.
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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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; and

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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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Letter to the unnamed inquirer, Office of Special Education Programs (OSEP), U.S. Department of Education, March 31, 1998, 30 IDELR 539.

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[T]he education records of a child, * * * are those records directly related to a child and maintained by the educational agency, or a party acting for the educational agency, on behalf of a child. See 34 CFR 300.560 & 99.3. Examples of such records would be the child's individualized education plan (IEP), tests taken by the child, evaluations of the child, and other documents created in connection with the child's educational performance and conduct.

FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 10-year-old child with a disability in the Milwaukee Public Schools. On February 23 and 26, 2001, the district sent to the child's parent written notice of her son's March 7, 2001, individualized education program (IEP) team meeting. On March 6, 2001, the child's special education teacher confirmed with a phone call that the child's parent would be attending her son's March 7 IEP team meeting. On March 7, 2001, at 2:15 p.m., the child's parent and a parent advocate, while in the school office, verbally requested access to the child's educational records or cumulative folder. They were informed that the cumulative folder was in the possession of the special education teacher assigned to the child's individualized education program (IEP) team that was about to meet.

The child's parent and the parent advocate were escorted to the child's IEP team meeting at approximately 2:45 p.m. The child's parent and parent advocate were given the child's cumulative record at the table. After two or three minutes they were told they could look the file over while the team proceeded with the meeting. The district IEP team members introduced themselves and the local education agency representative informed the child's parent of her right to be provided with additional time. The child's parent did not request additional time. The district proceeded with the IEP team meeting. The IEP team members asked the child's parent a number of questions, which the parent answered. The parent advocate looked at the information in the child's file and listened to the questions and answers.

CONCLUSION:

A school district is required to provide parents of a child with a 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. Providing parents' access to a child's educational records prior to an IEP team meeting helps ensure that parents are able to familiarize themselves with their child's records prior to any meeting and be able to participate more knowledgeably. Records include any information directly related to the student and maintained by an educational agency. At the beginning of any meeting to address the evaluation, individualized education program or placement of a child, the local educational agency staff must inform the child's parents of their right to be provided with additional time. If the parents of the child or the local educational agency staff determine at any point during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency must provide it.

On March 7, 2001, about 30 minutes before her son's IEP team meeting, the child's mother requested access to her child's educational record, or cumulative file. The child's mother was provided the record at the IEP team meeting to review. At the beginning of the meeting the local education agency representative informed the child's parent of her right to be provided with additional time. The child's parent did not request additional time. The district proceeded with the IEP team meeting. The district correctly implemented the law related to the issue in this complaint.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. 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
5/3/01
_________________________________________
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