IDEA Complaint Decision 99-001

On January 11, 1999 (letter dated December 15, 1998), a complaint was filed with the Department of Public Instruction by XXXXX against the Evansville School District. 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 ss. 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. During this investigation, department staff reviewed documents submitted by the district and relevant education records of the student. Department staff spoke by telephone with the complainant's advocate and the director of student services.

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ISSUE:

Did the district deny the complainant's son a free and appropriate public education (FAPE) when it failed to provide extended school year (ESY) services from June 1998 through August 1998 as required by his 1998-99 IEP?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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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 115.787, Wisconsin Statutes
Individualized education programs.

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(2) Required components. An individualized education program shall include all of the following:

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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child * * *. . .

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Question 46

46. Is the IEP a commitment to provide services -- i.e., must a public agency provide all of the services listed in the IEP?

Yes. The IEP of each child with a disability must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act.

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FINDINGS OF FACT:

The district held IEP meetings to develop the child's current IEP on March 27, April 23, and May 13, 1998. The child's parent and advocate attended the meetings. The child's 1998-99 IEP states that the child requires extended school year (ESY) services to receive a free appropriate public education (FAPE). The IEP requires that speech and language and occupational therapy services be provided twice a week from June 8 to August 6, 1998, except for July 6-10 and August 10-14, 1998. The IEP states that the child requires the related service of transportation to benefit from special education.

The district provided therapy sessions to the child twice per week from June 8 through July 2, 1998, although the child was absent from half of those scheduled sessions. From July 10 to August 6, 1998, the district had scheduled eight therapy sessions for the child in accordance with the IEP, but failed to provide transportation to the sessions. As a result, the child did not attend those sessions. The child's mother informed the district about the lack of transportation in early August, and she suggested canceling the two remaining therapy sessions scheduled in August.

CONCLUSION:

A school district must provide each child with a disability with a free appropriate public education (FAPE). A district provides FAPE, in part, by providing special education and related services, including ESY services, consistent with a child's IEP. The child's current IEP requires that the district provide speech and language and occupational therapy services twice a week from June 8 to August 6, 1998, and provide transportation as a related service. The district failed to provide the child with transportation to therapy sessions from July 10 to August 6, 1998; consequently, the child did not attend those sessions. The complaint is substantiated.

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DIRECTIVE:

The Evansville School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) that ensures that:

  1. The complainant's child and each child with a disability are provided special education and related services consistent with the provisions of the child's IEP.
  2. The district holds an IEP meeting to determine whether the child needs additional speech and language and occupational therapy sessions because of the sessions that it failed to offer.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. 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, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

Please be advised that under 34 CFR 300.661(d) either the school district or the complainant may request a review of these findings by the Secretary of the United States Department of Education. Requests for secretarial review should be submitted to:

Judith Heumann, Assistant Secretary
Office of Special Education and Rehabilitative Services
U. S. Department of Education
Switzer Building
330 C Street, S.W.
Washington, DC 20202

Signed JSP
3/12/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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