IDEA Complaint Decision 10-023

On April 8, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools (MPS). This is the department’s decision regarding that complaint. The issue is whether the district, five times during the 2009-2010 school year, properly determined placement for a student with a disability.

When a child with a disability who has an individualized education program (IEP) in effect transfers from another district, the new school district must provide a free appropriate public education, which includes the provision of services comparable to those described in the child’s IEP from the previous school district. This must be done in consultation with the parents and until such time as the district conducts an evaluation, if determined to be necessary, and develops and implements a new IEP, if appropriate. The district may also choose to adopt the IEP from the previous school district. The district must take reasonable steps to promptly obtain the child’s records. These requirements are to ensure there is no interruption of special education and related services.

Before the start of the 2009-2010 school year, the parent of a child with a disability informed school staff that her child had special education needs. On September 1, 2009, the child with a disability enrolled at an MPS elementary school. The child was provided special education services in the areas of reading, writing, math, and behavior control in the regular education classroom. On occasions when the child’s behavior required removal from the classroom, instruction was provided by the special education teacher. On September 10, elementary school staff requested the child’s records from another Wisconsin public school district, and the records were mailed on the same day. The child’s original placement in the district (placement number one) was properly determined with no interruption of special education and related services.

An 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 local educational agency (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. When a child changes schools because his or her residence changes to another attendance area within the LEA, or the child changes to a school the parent has selected under the MPS district open enrollment policy (three choice) or the child’s program or school building closes, an IEP team meeting is not required if: 1) the child’s new school building is the building he or she would otherwise attend if not disabled; and 2) the child’s IEP can be implemented as written in the new school building.

On or about September 16, the special education supervisor, regular education teacher, and special education teacher reviewed the child’s records from the sending school district and the current teachers’ behavior log for the child. On or about September 20, at a parent conference, the child’s parent was informed the child’s current school was not an appropriate placement. District staff recommended the child be moved to a self-contained classroom at another district elementary school. On September 23, the special education supervisor completed and mailed to the parent a “Determination and Notice of Placement Form.” The district did not conduct an IEP team meeting to determine the child’s placement, as required, and did not adopt and implement the IEP from the sending school district. The limited circumstances permitting changing a child’s placement without conducting an IEP team meeting do not apply in this instance. The child’s September 23, 2009, placement (placement number two) was not properly determined.

On December 1, the child’s parent met with a school social worker about the student’s attendance. On December 10, the child withdrew from the school. The student did not attend the school in December. On January 4, 2010, the child was readmitted to the school. The child was placed in a self-contained special education class 100% of the school day. The district did not conduct an IEP team meeting to determine the child’s placement and did not adopt and implement the IEP from the sending school district. The child’s January 4, 2010, placement (placement number three) was not properly determined.

On February 4, 2010, the child again withdrew from the school. On February 5, the child returned to his original Wisconsin public school district. On February 19, the child was admitted at a different Milwaukee Public Schools school through the district student services office. The student services placement officer, after meeting with the parent, sent an assignment e-mail to a district elementary school with a provider type code effective February 25, 2010. The student did not have a school assignment or placement February 22, 23, and 24. Based on the provider code from the student services placement officer, the student was placed in a self-contained special education class 100% of the time. The district did not conduct an IEP team meeting to determine the child’s placement and did not adopt and implement the IEP from the sending school district. The child’s February 19, 2010, placement (placement number four) was not properly determined through an IEP team meeting.

On March 3, 2010, the elementary school staff received the child’s records including the child’s February 27, 2009 IEP. On March 10, the district held an IEP team meeting to review and revise the child’s IEP, develop an annual IEP, and determine placement. The child’s mother attended the meeting along with a parent advocate. The child’s mother and the parent advocate did not agree with the district staff that child’s IEP would continue to be implemented at the child’s current school. The child’s parent requested the child’s placement be at the school the child last attended in the district. The special education supervisor, serving as the local education agency representative on the IEP team, contacted the special education leadership liaison (SELL) regarding placement at the child’s previous school. The SELL informed the supervisor the team could offer the school as a placement. When the special education supervisor informed the IEP team members the child’s school of placement could be the school requested by the parent, the parent advocate stated the IEP for the child should be written by staff at the school of future placement. The parent and parent advocate left the IEP team meeting. The meeting ended at that point. The IEP team did not revise the child’s IEP which had lapsed on February 27 and did not make a placement determination based upon the child’s IEP. On March 11, the child was admitted at the requested school. An 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 current IEP. The district must provide a child’s parents or guardian prior written notice whenever the district proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability. The child’s March 11, 2010, placement (placement number five) was not properly determined.

On March 26, the district held an IEP team meeting to review and revise the child’s IEP, develop an annual IEP, conduct a functional behavioral assessment, develop a behavior intervention plan, determine compensatory education, and determine placement. Between February 27 and March 26, the child did not have a current IEP. On March 26, the parent was provided a notice of placement. On March 26, the IEP team properly determined the child’s placement. Compensatory services were also considered. The child is no longer enrolled in the district. No further child specific corrective action is required. The district must, within 30 days from the date of this decision, submit a corrective action plan to ensure the district properly determines placements for students with disabilities.

This concludes our review of this complaint.

//signed CST 6/7/10
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