IDEA Complaint Decision 05-016

On March 7, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District No. 1. This is the department's decision regarding that complaint. The issue is whether the district, during the 2004-2005 school year, properly developed an individualized education program (IEP) and determined placement for a student with a disability following her transfer from another state.

This complaint concerns the education of a child with a disability who transferred to the district from an Illinois district in July 2004. On July 19 the parent enrolled her child in the district and signed a release of information for the child's records to be forwarded from the Illinois district. The first day of instruction for students was September 2, 2004. On September 16, 2004, an IEP team meeting was held to review and revise the child's Illinois IEP, determine placement, and consider out-of-state transfer requirements. The child's mother requested the continuation of a one-on-one nurse. The district proposed that the child's medical needs could be met without a one-on-one nurse. It was decided that additional information from the child's primary physicians would be gathered and reviewed in preparation for another IEP team meeting. The IEP team meeting adjourned without completing the IEP revisions or determining placement.

On November 11, 2004, an IEP team meeting was held to review and revise the child's Illinois IEP and determine placement. The IEP team revised the IEP developed by the Illinois district. The district staff and parent did not agree at the meeting on how to address the student's health care needs. The district asked for additional time to complete the review. The child's mother requested information regarding mediation. On November 17, district staff contacted the child's parent to offer the opportunity to hold an IEP team meeting to complete the child's IEP and determine placement. Because the only area of difference was how to address the student's health care needs, it was decided not to hold another IEP team meeting. The child's parent requested the necessary forms to request mediation. On November 17, 2004, the child's parent was provided a notice of placement and consent for initial placement with a copy of the November 11 IEP. The placement notice indicates that the IEP developed on November 11 would be implemented by the district. The cover page of the November 11 IEP documents that the district adopted the Illinois evaluation and eligibility determination and revised the Illinois IEP. Mediation sessions were conducted on January 26 and March 16, 2005. On March 16, 2005, the parent was provided a notice of placement stating that the IEP reviewed on March 16 would be implemented on April 4, 2005. The parent signed consent for placement on March 16, 2005. Between September 2, 2004, and April 4, 2005, the child was not provided educational services.

Under current law, when a Wisconsin district receives a transfer pupil from another state, the receiving district is not required immediately to implement the sending agency's IEP. However, the receiving agency must ensure that the rights of the pupil and the parents are not compromised. A child's right to education is established under Article X, Section 3, of the Wisconsin Constitution. Therefore, the agency must admit the pupil to school without delay.

The agency also must initially review the sending agency's evaluation and eligibility determination to decide whether the child has a disability under Wisconsin standards and the IDEA. If the evaluation and eligibility determination meet these standards, the receiving agency may adopt them. If the receiving agency adopts the out-of-state evaluation and eligibility determination, the receiving agency must either adopt the sending agency's IEP for the pupil or conduct a meeting to develop its own IEP. If the receiving agency does not adopt the sending agency's IEP, the receiving agency must conduct a meeting to develop its own IEP without undue delay, but in no case later than 30 calendar days after the date that the agency adopted the sending agency's evaluation and eligibility determination. The agency may begin special education services after developing its own IEP by providing proper notice to the parents and obtaining the parents' consent for the initial provision of special education in Wisconsin. The district must conduct an evaluation and develop an IEP and placement offer for the child within 90 days after the child enrolls in the district.

In this case, the district adopted the out-of-state district's evaluation and eligibility determination and revised the out-of-state IEP. The district notified the parent of this determination on the placement notice dated March 16, 2005. However, the district did not notify the parent within 90 days after the child enrolled in the district. In addition the child was not provided educational services between September 2, 2004, and April 4, 2005. The district will submit a proposed corrective action plan to the department within 30 days of receiving this decision to ensure that the district properly develops an IEP, determines placement and provides educational services when the district receives a transfer student from outside Wisconsin who was receiving special education in the sending state. The plan should reflect changes in the Individuals with Disabilities Education Act which take effect July 1, 2005: those changes require that the district provide the child with a free appropriate public education (FAPE), which includes providing the child with services comparable to those described in the out-of-state IEP. This must be done in consultation with the parents and until such time as the LEA conducts an evaluation, if it is determined necessary by the LEA, and develops a new IEP, if appropriate. This can be accomplished by following the requirements under PI 11.07(2) for both in-state and out-of-state transfers. In addition the district must conduct an IEP team meeting within five days of receiving this decision to determine what additional services to provide to this child for the time between September 2, 2004, and April 4, 2005, when educational services were not provided. The district must send a copy of the child's IEP documenting the determination of these services by June 1, 2005.

This concludes our review of this complaint.

//signed CST 5/6/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jfd

For questions about this information, contact Patricia Williams (608) 267-3720