IDEA Complaint Decision 12-054

On November 1, 2012, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Racine Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year:

  • Properly afforded the parent the opportunity to participate in an individualized education program (IEP) team meeting;
  • Properly included the required participants in an IEP team meeting;
  • Properly changed the student’s IEP; and
  • Properly conducted a manifestation determination.

The issues involve four of the student’s IEPs, dated May 25, October 10, October 23, and November 7, 2012.

Properly afforded the parent the opportunity to participate in an IEP team meeting, and properly included the required participants in an IEP team meeting

The local educational agency (LEA) must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying the parents of the meetings early enough to ensure that they will have an opportunity to attend, and scheduling the meeting at a mutually agreed on time and place. When a child is placed in foster care, the biological parent remains the parent for purposes of special education law unless the parental rights have been terminated.

A district must ensure that the IEP team meeting for each child with a disability includes in addition to the child’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, a LEA representative and an individual who can interpret the instructional implications of evaluation results, who may be the regular education teacher of the student, special education teacher of the student, or the LEA representative. At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child may be members of the IEP team. These additional individuals are not required IEP team members. Before the child’s foster parents may participate in an IEP team meeting or exchange information about the child, the child’s parent must provide consent to release information from education records.

The LEA acknowledges they did not afford the child’s parent an opportunity to participate in the IEP team meetings held on May 25 and October 10, 2012, by not providing the parent notice of the meeting. The LEA also acknowledges that they erred by inviting the foster parents to attend these IEP team meetings without parental consent. After the district became aware of these errors, the parents were notified of and attended the IEP team meetings held on October 23 and November 7, 2012. No further child-specific corrective action is required.

The IEP team meetings held on May 25, October 10, October 23, and November 7, 2012, included a regular education teacher of the child, a special education teacher of the child, and a LEA representative. The parent maintains the October 10, 2012, IEP team meeting was illegal because the school did not obtain written consent from the child’s parent to allow the IEP team meeting to be held and did not include the child’s outside therapist and case manager. Neither state nor federal special education laws require written parental consent to conduct an IEP team meeting, and private or outside therapist, and case managers are not required IEP team members.

Within 30 days of the date of this decision, the LEA must provide DPI a district wide corrective action plan to ensure staff understand the role of parents and foster parents when the child is in a foster setting. The district plan must also ensure before the child’s foster parents are able to participate in an IEP team meeting or exchange information about the child, the district obtains parental consent to release information from education records.

Properly changed the student’s placement

In making changes to a child’s IEP after the annual IEP team meeting for a school year, the parent of a child with a disability and the district may agree not to convene an IEP team meeting for the purposes of making those changes and instead may develop a written document to amend or modify the child’s current IEP. The district must also provide the child’s parent a copy of the revised IEP.

This exception to the IEP team meeting requirement does not extend to changes in placement. In Wisconsin, an IEP team determines the special education placement for a child with a disability. Placement does not refer merely to the building where the student receives the services. Placement refers to the environment in which the child is receiving the services. Moving the student from the special education environment into a regular education environment constitutes a change in placement.

On September 19, 2012, the foster parent of the child was sent a “Notice of Change to IEP without an IEP Team Meeting” form indicating the child’s IEP services would change from a self-contained environment to a general education environment with inclusion services. The reason for making the change states “the child has been working to keep the behavior in check and academics up.” The change removed the student from the special education classroom environment four periods per day and placed the student full time in regular education classrooms with support from a special education teacher. An IEP team meeting was not held to determine the student’s change in placement. On October 10, 2012, the IEP team met and revised the child’s IEP to indicate the child’s placement would be full time in the regular education environment. The district did not provide the parent a copy of the revised IEP.

The student’s placement was not properly changed. No child-specific corrective action is required because subsequent IEP team meetings for the child were held on October 23 and November 7, 2012, which included determining placement for the student. Within 30 days of the date of this decision, the district must provide DPI a district wide corrective action plan to ensure changes in placement are properly made and the district provides the child’s parent a copy of the revised IEP.

Properly conducted a manifestation determination

Within 10 school days of any decision to make a disciplinary change of placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. In conducting the manifestation determination, the group must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents. The conduct is considered to be a manifestation of the child’s disability if the conduct was caused by or had a direct and substantial relationship to the student’s disability or the conduct was the direct result of the district’s failure to implement the IEP.

On October 18, 2012, the student was involved in a behavior incident, which included a fight and bringing a knife to school. The student was suspended and the district decided to move forward with an expulsion. On October 23, 2012, an IEP team meeting was held to conduct the manifestation determination. The child’s parent attended the meeting. The IEP team considered all relevant information and determined the student’s behavior, which was subject to disciplinary action, was not a manifestation of the student’s disability. On October 30, an expulsion hearing was held and it was determined the student would be expelled. On November 7, an IEP team meeting was held and the team determined the student would receive services at a district alternative school for the remainder of the 2012-13 school year. The district properly conducted a manifestation determination.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint. You may contact Janice Duff, Special Education Team, at (414) 227-1845 if you have any questions about this decision or for technical assistance.

//signed CST 12/13/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd

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