IDEA Complaint Decision 99-002

On January 5, 1999 (letter dated December 28, 1998), a complaint was filed with the Department of Public Instruction by XXXXX against the Janesville 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. In conducting this investigation, department staff reviewed documents submitted by the complainants, documents submitted by the district, and relevant education records of the child. Department staff spoke by telephone with the complainants, the complainants' advocate, the elementary school psychologist, and the middle school psychologist.

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ISSUE #1:

Did the district fail to identify and evaluate the child as learning disabled after a special education referral was made at the beginning of the 1996-97 school year?

ISSUE #2:

Did the district fail to provide written notice to the complainants when it refused to evaluate the child for a learning disability at the beginning of the 1996-97 school year?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 11.01 (Repealed October 1, 1998)
Purpose.

(1) LEGISLATIVE INTENT. The legislature recognized that many children and youth, 3 to 21 years of age, have not experienced appropriate educational opportunities because comprehensive services were not available through all public schools which were commensurate with their EEN. Subchapter V, ch. 115, Stats., was enacted to ensure the identification of such needs and the development of services for children to appropriately serve these needs. School districts shall provide children with EEN who have attained the age of 3 with a free appropriate public education in accordance with this chapter.
(2) BASIC TENETS. (a) All children and youth in the public and private sectors, who are in need of special education services, shall be identified. The legislature has specified that the identification process shall include screening, referral and M-team procedures.

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Wisconsin Administrative Code, Section PI 11.04 (Repealed October 1, 1998)
Multidisciplinary teams.

(1) CONSENT AND NOTICE FOR THE M-TEAM EVALUATION PROCESS.

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(b) Whenever a board proposes or refuses to initiate or change the M-team evaluation process, it shall send a written notice to the child's parent of its intent to so propose or refuse. The notice shall be sent within a reasonable period of time before the proposed action or before the refusal to take action and shall meet the requirements under s. PI 11.09(1).

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Wisconsin Administrative Code, Section PI 11.09 (Repealed October 1, 1998)
Notice and consent.

(1) NOTICE. (a) A notice shall be written in language that is understandable to the general public . . .

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(d) A notice shall contain all of the following:
1. A description of the action proposed or refused by the board, an explanation of why the board proposes or refuses to take the action, and a description of any options the board considered and the reasons why those options were rejected.
2. A description of each evaluation procedure, test, record, or report the board used as a basis for proposing or refusing to take an action.
3. A description of any other factor which is relevant to the board's proposing or refusing to take an action.
4. A full explanation of all of the following:
a. The right to an independent educational evaluation under s. PI 11.08.
b. The right to have specialists on the M-team and to have the standards followed that are provided under s. PI 11.04(3)(d).
c. The right to know about and be present and represented at an M-team meeting as provided under s. PI 11.04(4)(b) and (5)(d)4.b. and 6.b., and the right to receive a copy of the M-team report and to request a conference to discuss the report under s. PI 11.04(5)(d)5.

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FINDINGS OF FACT:

The complainants are the grandparents and legal guardians of the child whose education is the subject of this complaint. The child transferred from a private school to Lincoln Elementary School in the Janesville School District at the beginning of the 1996-97 school year. On September 6, 1996, the complainants met with district staff to discuss the child's behavioral problems and their effect on his learning. At the meeting, the school psychologist prepared a written referral of the child for an evaluation because of "behavior/learning concerns." It was noted on the referral form that the child's "behavior interferes with his learning" and that the child "does not complete work independently" and "is often involved in peer conflicts." It was also noted that "[a]t home [the child] can do his work when an adult sits next to him." The form listed a behavior improvement plan designed by the school's emotional disturbance (ED) teacher as an intervention strategy that had been tried with the child.

District staff suspected that the child might be disabled in the area of ED and did not suspect a learning disability (LD). They believed that the complainants agreed, based upon the discussion at the September 6 meeting. At the meeting, the complainants signed a Notice of Receipt of Referral and Consent for Evaluation. The notice meets the requirements of s. PI 11.09, Wis. Admin. Code (repealed on October 1, 1998). The notice form states that the testing would be conducted by the school psychologist, an ED teacher, and the school social worker. An LD teacher was not included to conduct testing because the child was not suspected of having LD. The district did not refuse to evaluate the child for LD.

CONCLUSION:

A school district must identify and provide a free appropriate public education (FAPE) to each child with a disability. A district meets its obligation to provide FAPE, in part, by providing special education and related services that meet the requirements of the statutes and rules enforced by the department in conformity with a child's IEP. Whenever a district proposes or refuses to initiate or change the evaluation process, it must send a written notice to the child's parent of its intent to so propose or refuse.

District staff met with the complainants on September 6, 1996, to discuss the child's behavioral problems and the resultant effect on his learning. At the meeting, the school psychologist prepared a written referral for evaluation, and the complainants were provided with a written notice and gave their consent for the evaluation. The notice met the requirements of s. PI 11.09, Wis. Admin. Code (repealed on October 1, 1998). District staff suspected that the child might have a disability in the area of ED. They did not suspect a disability in the area of LD. The district did not refuse to evaluate the child for LD. There is no violation with regard to issues #1 and #2.

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ISSUE #3:

Did the district fail to send the complainants a copy of the placement offer within 90 days of receiving a referral for the child on May 20, 1998?

ISSUE #4:

Did the district fail to provide notice to the complainants when the child's 1998-99 placement was changed to a more restrictive environment?

ISSUE #5:

Did the district fail to implement a provision of the child's 1998-99 IEP(s) related to aide support?

ISSUE #6:

Did the district fail to provide the complainants with the opportunity to question the determinations made regarding the child's 1998-99 IEP(s)?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
115.76 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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(3) Timeline. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under s. 115.777 or initiates a reevaluation of the child under s. 115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.

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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, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child * * *.

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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(3) To the maximum extent appropriate, a child with a disability, including a child receiving publicly funded special education in a public or private institution or other care facility, is educated with nondisabled children.
(4) Special classes, separate schooling or other removal of a child with a disability from the regular educational environment occurs only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED. (a) The local educational agency shall establish and maintain procedures to ensure all of the following:
1. That the parents of a child may examine all records relating to the child and may participate in meetings about the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education to the child, and may obtain an independent educational evaluation of the child.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child.

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(2) NOTICE. The notice required under sub. (1) (b) * * * shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78 (4).

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Questions 26, 45 and 51

26. What is the role of the parents at an IEP meeting?

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child.

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45. 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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51. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

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Letter from Paul Halverson to Sister Patrice M. Colletti, September 11, 1996.

It is the department's position that special education teacher aides provide staff support to a special education program. Teacher aides are not necessarily uniquely qualified or licensed to provide any special education or related service. For this reason we recommend that teacher aides should not be identified in an individualized education program (IEP) as special education or a related service.

The IEP committee should address the special education and related services that a child needs rather than the specific staff members that will provide these services. If an IEP specifies that a teacher aide should be assigned to a student, the district may be unnecessarily limiting who will be providing educational support to the student. In many instances it may be more efficient or appropriate to the needs of the child for the district to have a classroom teacher or some other school staff member provide the support that is required.

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FINDINGS OF FACT:

On May 20 and 29, 1998, the Janesville School District held two IEP meetings to develop the child's IEP for the 1998-99 school year. The complainants and the complainants' advocate attended and participated in both meetings. On May 26, 1998 (letter dated May 20, 1998), the district received a letter from the complainants' advocate that requested the child be reevaluated for the purpose of determining LD eligibility. On July 1, 1998, the district offered placement to the child in an emotional disturbance (ED), self-contained integrated program, based upon the May 1998 IEP which did not include LD services. District staff communicated with the complainants during the summer about the status of the reevaluation.

The district completed the reevaluation of the child on August 18, 1998, and the child was identified as having a learning disability and a continuing disability in the area of ED. A notice of the evaluation findings was sent to the complainants on September 2, 1998. An IEP meeting was held on October 13, 1998, to review the child's 1998-99 IEP and add LD services to the IEP. The complainants and the complainants' advocate attended and participated in the meeting. The complainants received a copy of the child's 1998-99 IEP, as revised on October 13, 1998, that included a notice of placement for a more restrictive environment. The notice of placement meets the statutory requirements, other than timeliness. The district did not request a written extension from the parents of the 90-day deadline for offering placement to the child. Prior to the complaint being filed, the district acknowledged exceeding the 90-day timeline and apologized in a letter to the complainants.

The child's 1998-99 IEP, as originally developed in May and as revised in October 1998, requires "aide support" as a supplemental aid and service for the child. The amount, frequency and location of aide support is not stated in the IEP. The child received aide support in all classes, except for Spanish and choir, during the time relevant to this complaint. The child dropped Spanish class during first semester.

On October 13, 1998, the complainants requested that the district conduct additional evaluations of the child. On December 17, 1998, an IEP team meeting was held to determine the child's eligibility for Other Health Impaired (OHI), to reevaluate the child's eligibility for ED services, and to review the child's IEP. The complainants and their advocate attended and participated in the meeting. At the meeting, the district directed that the eligibility issues should be addressed prior to discussing IEP revisions and the change of placement request presented by the complainants. Another IEP meeting was subsequently scheduled for January 12, 1999, to review the child's IEP and determine placement.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. A district meets its obligation to provide FAPE, in part, by providing special education and related services that meet the requirements of the statutes and rules enforced by the department in conformity with a child's IEP. Special education statutes require that a district notify parents of the educational placement of their child within 90 days after it receives a special education referral for the child or initiates a reevaluation of the child. The district received a written request from the complainants' advocate for an LD evaluation of the child on May 26, 1998. Although the district kept the complainants informed of the status of the LD evaluation process during the summer, it did not request a written extension of the 90-day deadline from the parents or the department. The district offered placement to the child on October 13, 1998, more than 90 days after the referral for evaluation was received. There is a violation with regard to issue #3.

Whenever a district proposes or refuses to change the educational placement of a child, it must send a written notice to the child's parents of its intent to so propose or refuse. At the IEP meeting held on October 13, 1998, the complainants received a copy of the child's revised 1998-99 IEP that included a notice of placement for a more restrictive environment. The notice of placement meets the statutory requirements, other than timeliness. There is no violation with regard to issue #4.

A district is required to provide special education and related services to a child with a disability consistent with a proper IEP. An IEP must include a statement of the specific special education and related services to be provided to the child. Special education aides provide staff support to special education programs. Aides are not necessarily uniquely qualified or licensed to provide any particular special education or related service. For this reason, the department recommends that teacher aides not be identified in an IEP as special education or a related service. The IEP committee should address the special education and related services that a child needs rather than the specific staff members that will provide these services. However, if an IEP identifies a special education program aide as special education or a related service, then the IEP must clearly specify the amount, frequency, location, and duration of service required. The child's 1998-99 IEPs require that he receive "aide support" as a supplemental aid and service. The amount, frequency and location of aide support is not stated in the IEPs. The child did not receive aide support in Spanish and choir. There is a violation with regard to issue #5.

Districts must allow parents to be equal participants in developing, reviewing and revising their child's IEP and in determining the child's placement. During the time relevant to this complaint, the complainants received notice of and attended all IEP meetings held for their child. The complainants and their advocate actively participated in the IEP meetings, discussing the child's eligibility, appropriate services, and placement. The district did not deny the complainants' rights by directing that the child's eligibility should be discussed first at the IEP meeting on December 17, 1998, and scheduling another IEP meeting for January 12, 1999, to review the child's IEP and determine placement. There is no violation with regard to issue #6.

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DIRECTIVE:

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

  1. The district provides timely notice of placement to the complainants and the parents of each child with a disability, pursuant to s. 115.78 (3)(a), Wis. Stats. (issue #3)
  2. The district provides special education and related services to the complainants' child and to each child with a disability consistent with each child's IEP and includes a statement of the amount of services to be provided in the child's IEP so that the level of the district's commitment of resources is clear to the parents and other IEP team members. (issue #5)

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
3/5/99
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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