On March 27 and July 12, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX, a special education teacher employed by Madison Metropolitan School District against the Madison Metropolitan School District. This is the department's decision regarding the complaint. The issues are whether the district, during the 2001-2002 school year:
- In determining the special education placements for three students with disabilities, complied with the least restrictive environment provisions relating to removal from the regular education classroom, including that placement decisions are made by individualized education program (IEP) teams based on the student's IEP;
- For student L.N., provided services to implement the annual goals related to study/organization and self-advocacy and provided required program modifications or supports for school personnel;
- For student N.C., provided services to implement the annual goal related to transition and provided required program modifications or supports for school personnel;
- For student M.A., provided services to implement the annual goal related to study/organization and provided required program modifications or supports for school personnel; and
- Included required participants on IEP teams during the spring of 2002 for each of the three children.
Department staff interviewed the complainant, the school principal, the middle school special education coordinator, and regular and special education teachers who worked with the three children during the 2001-2002 school year.
Student MA:
According to the IEP written on March 27, 2001, the student was fully mainstreamed with regular education peers, but did have access to the resource room when she needed to take a test or needed help with assignments. School staff tried to keep MA in the regular education environment for the first five to eight weeks of school, but she was failing. On December 6, 2001, the principal sent a memo to several of the regular education and special education staff who worked with MA and other students. The memo stated: "The following students need to be moved around in order for their special educational needs to be met. I am requesting the following schedule changes to be made for this student to achieve success MA-she should be getting pull out LA [language arts]." The complainant told the principal that an IEP team meeting was needed to make such a change.
On December 7, 2001, an IEP meeting for MA was convened to review her IEP. The parent was invited to attend, but told the IEP team to meet without her. The IEP team, consisting of the principal as the LEA representative, the special education teacher and the regular education teacher, determined that MA's fulltime placement in the mainstream regular education classes was not working. The team determined that the child would participate in self-contained Language Arts, Math, and Study Skills classes.
The complainant alleges that the IEP team's new goal for language arts could have been accomplished in the regular education environment rather than in the more restrictive self-contained special education classroom. However, the IEP team considered information from the regular education language arts teacher (who was a member of the team) about MA's frequent absences and her failure to hand in any work assignments. The team also noted that MA performed better in small groups where she felt more comfortable. The team wrote that she needed a guided approach to learning and needed repetition to retain information. The team considered the regular education environment, but determined the self-contained environment for language arts would be the appropriate placement. The IEP contains information which supports the team's decision. The decision was made following required procedures.
The complainant claimed that the services needed to implement the goal related to study/ organization were not provided, nor were the required program modification or supports for school personnel. The December 7 IEP states, "will meet with case manager to establish expected grades and achievement in academic classes at least __ times per quarter." According to two of the child's special education teachers, the case manager duties were divided; one teacher handled paperwork and the other provided direct services. The teacher who provided the direct services said she met with MA weekly to discuss her progress. Neither she nor the other special education teacher knew why the short-term objective included a blank rather than a number. When the IEP team met again on May 7, 2002, it made the same error; the child is again to meet with the case manager to establish expected grades and achievement, but the number of times required to meet is left blank. The LEA's commitment of resources is unclear in this regard.
The December 7 IEP included the following language under program modifications or supports for school personnel: "Consultation with EEN teachers to ensure that appropriate modifications and accommodations in the general ed. setting are being accessed by MA." Under frequency/amount, the IEP states "as needed." The amount of services must be stated in the IEP so that the level of the LEA's commitment of resources is clear. Statements such as "as needed" or "when appropriate" do not make clear the LEA's level of commitment of resources. If services are to be provided under particular circumstances, the IEP must state the circumstances when they are needed. The IEP written in May 2002 includes the same ambiguity. The district will hold an IEP team meeting within thirty days to ensure that the IEP is written to fulfill the requirement to make the LEA's commitment of resources clear including the amount and frequency of services. In addition, the district will submit to the department corrective action to ensure that IEPs for all children in the district fulfill this requirement.
The complainant further alleged that the IEP team that met in May 2002 was improperly constituted because it did not include the child's grade level language arts teacher (regular education). The law requires that an IEP team include one of the child's regular education teachers. The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child. If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child. One of the child's regular education teachers was included on the May 2002 IEP team, fulfilling the requirement regarding regular education teacher participation.
Student NC The complainant alleges that NC's placement decision was not based on her IEP, nor was she placed in the least restrictive environment. An IEP meeting was convened to review and revise NC's IEP on November 30, 2001. The team determined that NC would not be involved fulltime in the general curriculum, but would be involved in self-contained language arts and math class. The IEP team concluded that NC would receive instruction for language arts five hours per week in the "regular and special education classrooms." The team also decided that NC would not participate fulltime with her non-disabled peers in regular education because her disability required "self-contained classes as indicated." As noted above, the principal sent a memo dated December 6, 2001, to several of the regular education and special education staff who worked with NC. The memo requested that schedule changes be made for NC; she was to be placed in pull out language arts study skills. The principal said the child was not moved immediately into the self-contained class language arts class due to objections raised by the complainant. The principal said the complainant refused to serve the child in her self-contained language arts class unless clearly provided for in the child's IEP.
In light of the complainant's objections, the principal and other special education teachers reviewed the IEP written in November. The principal said she and the teachers felt it was appropriate to move the child from a regular class to a self-contained class due to the language in the IEP describing the location of services as "regular and special education classrooms." In the IEP under "Location" where special education services will be provided, it is acceptable to use the word "and" or the word "or" (e.g. special education classroom and regular education classroom) if somewhere else in the IEP the extent of the removal is clarified. There is nothing in the November IEP to specify when language arts instruction will be offered in the regular education classroom or when it should be offered in the special education classroom.
An IEP team met again on March 11, 2002, to review the child's IEP to determine if she was appropriately placed in a self-contained language arts class. Based on information presented by several teachers and the child's mother, the IEP team subsequently concluded the child was appropriately placed in the self-contained class. However, the location for services is still written as "regular and special education classroom." The district will submit to the department within thirty days of receiving this decision corrective action to ensure that the location of services and the extent of a child's removal from nondisabled peers is clear in all IEPs.
The complainant also alleged that the March 11 IEP team was not properly constituted because the appropriate regular education teacher was not in attendance. She alleged that the 7th grade language arts teacher or the 8th grade language arts teacher should have been present instead of the science teacher who attended the meeting. The law requires that an IEP team include one of the child's regular education teachers. The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child. If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child. The team included one of the child's regular education teachers fulfilling the requirement of regular education teacher participation.
The complainant alleges the child was not provided with services to implement the annual goal related to transition in the March 11 IEP. She specifically alleges that the child did not meet with her case manager regularly as required in the short-term objective, "will meet with her case manager on a regular basis 90% of opportunities." The amount of services must be stated in the IEP so that the level of the LEA's commitment of resources is clear. Because the IEP does not indicate how often the student will have an opportunity to meet, it does not make clear the LEA's level of commitment of resources. If services are to be provided under particular circumstances, the IEP must state the circumstances when they are needed. Although the teacher who performed most of the direct services for NC said she had documentation in her calendars to show these meetings occurred, the IEP as written in March is ambiguous. The district will hold an IEP team meeting within thirty days to ensure that the IEP is written to fulfill the requirement to make the LEA's commitment of resources clear including the amount and frequency of services.
The complainant alleges that the required program modification or supports for school personnel listed in NC's IEP were not provided. The March 11 IEP required consultation between the regular and the special education teacher fifty minutes per week to ensure that appropriate modifications in the general education setting were being provided to NC. According to the special education teacher who provided services to NC, she consulted with the regular education teacher weekly. The special education teacher and the regular education teacher said that fifty minutes was an average amount of time for the meetings. Both teachers indicated that these meetings occurred weekly in accordance with the IEP.
Student LN The complainant alleged that the school principal removed LN from the regular education environment and unilaterally placed her in a self-contained language arts class. The child, a transfer student from another school, began in the regular education language arts class, but could not complete her assignments. She was failing in the regular education class. The school principal indicates that in late October 2001, several teachers discussed LN's problems at a team meeting of staff and decided she needed more support. As described in previous sections of this decision, the principal sent a memo in early December to several of the regular education and special education staff who worked with LN. The memo stated that LN needed pull-out math and language arts. Due to the complainant's objections to the proposed move, the principal and the child's special education teachers reviewed the existing IEP. A formal IEP meeting was not held.
According to an IEP written in September 2001, the child would not participate full-time in the general curriculum. Instead, she would be included in a guided study class and receive programming in written language with other disabled peers. The IEP team also wrote that the child would not participate full-time with her nondisabled peers in the regular education environment. The team wrote that she "may be included in small group instruction in written language and math that would include other disabled peers." Under the section on specially designed instruction, the IEP states that the child is to receive written language instruction fifty minutes per day in the "regular and special education classroom."
The principal said she and the teachers believed the language of the IEP allowed LN to receive instruction in the self-contained setting. In the IEP under "Location" where special education services will be provided, it is acceptable to use the word "and" or the word "or" (e.g. special education classroom and regular education classroom) if somewhere else in the IEP the extent of the removal is clarified. There is nothing in the September 2001 IEP to clarify when written language instruction will be offered in the regular education classroom or when it will be offered in the special education classroom. However, another IEP team meeting was convened on April 23, 2002. Under the services section, the team wrote that the child will receive self-contained language arts for fifty minutes per day in the special education classroom. The ambiguity in the previous IEP was removed. The team reviewed the child's placement and, based on information from several sources, determined she should be placed in the self-contained language arts class. The April IEP team followed proper procedures in this regard.
The complainant also alleged that the services related to the IEP goals of study/organization and self-advocacy were not provided. Under the first goal concerning study and organizational skills, the short-term objective required the child to meet with her case manager to discuss her grades and achievement at least one time per week. The complainant claims this did not happen as the child's case manager was busy dealing with one student and had no time to work with any other students. However, the special education teacher who provided services to LN maintains she did meet weekly with the child to go over her progress. She could document those meetings on her calendars.
The complainant also claimed that a checklist was never developed by the teacher as required in the IEP. A checklist was to be used to assist the child with capitalization, punctuation and spelling. Although the regular education teacher worked with the child on her editing skills, neither she nor the special education teacher developed a checklist. The complainant further alleged that the anecdotal logs were not developed to measure the child's progress as required by the IEP. Neither special education teacher who shared the case manager duties developed anecdotal logs. The district did not implement these portions of the student's IEP. The district will submit to the department within thirty days of receipt of this decision corrective action to ensure that IEPs for this child and all children in the district are implemented.
The complainant alleged that program modifications or supports for school personnel required by LN's September IEP were not provided. The IEP required sixty minutes per week of consultation between regular education and special education teachers. The regular education language arts teacher stated that she and the special education teacher consulted frequently on LN's progress. The special education teacher believed sixty minutes was the average of the time spent on weekly consultation.
The complainant alleged that an IEP meeting for LN that was convened on April 23, 2002, was not properly constituted because a science teacher attended as the regular education teacher instead of the regular language arts teacher. The law requires that an IEP team include one of the child's regular education teachers. The regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child. If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child. The team included one of the child's regular education teachers fulfilling the requirement of regular education teacher participation.
This concludes our review of this complaint.
//signed CST 10/31/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
Dec/mm
