IDEA Complaint Decision 99-004

On January 20, 1999 (letter dated January 15, 1999), a complaint was filed with the Department of Public Instruction by XXXXX and XXXXX the Hustisford School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

This complaint was acknowledged on February 10, 1999; the complainant parent requested a due process hearing on February 23, 1999. As a result, the Division for Learning Support: Equity and Advocacy (DLSEA) held issues 5 and 6 of this complaint in abeyance and notified the parties of this decision in a letter dated March 10, 1999. In a letter dated May 10, 1999, the attorney representing the parent withdrew the request for the hearing. Thus, the DLSEA resumed investigation of issues 5 and 6 of this complaint.

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. As part of this investigation, department staff reviewed documents and relevant education records of the child submitted by the district, as well as documents submitted by the complainants. Department staff spoke by telephone with one of the complainants and with the director of special education for Cooperative Educational Service Agency #6 which provides services to the district. Several of the child's teachers for the 1998-99 school year also were interviewed, and the tape recording of an December 21, 1998, IEP team meeting was reviewed.

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ISSUE #1:

Did the district fail to evaluate the child for a suspected disability in a timely manner when it was requested by the child's mother?

APPLICABLE STATUTES AND RULES:

PI 11.03, Wisconsin Administrative Code (Repealed October 1, 1998)
Special education screening and EEN referrals.

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(2) EEN REFERRALS. (a) Any person who has reasonable cause to believe that a child is a child with EEN may submit an EEN referral to a school board. An EEN referral shall be in writing and it shall include the reasons why the person believes that the child is a child with EEN.
(b) * * * A board shall document and date the receipt of each EEN referral.

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(f) A board shall accept and process all EEN referrals submitted to it regarding children who are residents of the school district and who have not graduated from high school.
(g) Whenever a board receives an EEN referral for a child, it shall send a written notice to the child's parent of the EEN referral. The notice shall be sent as soon as possible after receiving the EEN referral and it shall meet the requirements under s. PI 11.09(1). The notice shall also state the date of receipt of the EEN referral and that in accordance with s. PI 11.06(5)(a), the board is required to send to the parent a copy of the child's placement offer within 90 days of the date the board received the EEN referral.

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

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(2) APPOINTMENT AND COMPOSITION. (a) 1. Whenever a board receives an EEN referral for a child who is a resident of the district and who has not graduated from high school, the board shall appoint an M-team to conduct an M-team evaluation of the child to determine whether the child is a child with EEN * * * .

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PI 11.05, Wisconsin Administrative Code (Repealed October 1, 1998)
Individualized education program.

(1) APPOINTMENT OF STAFF. When an M-team report is approved under s. PI 11.04(5)(d) indicating that a child who is 3 years of age or older, a resident of the school district and who has not graduated from high school, is a child with EEN, a board shall appoint staff to develop an IEP for the child. * * *

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PI 11.06, Wisconsin Administrative Code (Repealed October 1, 1998)
Placement offer.

(1) DEVELOPMENT OF A PLACEMENT OFFER. (a) When an IEP has been completed for a child, the board shall have the director or program designee develop a placement offer for the child.

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(5) TIMELINE. (a) The board shall send a copy of a child's placement offer to the parent within 90 days of the date the board received an EEN referral or initiated a reevaluation for the child. If a board needs an extension of that 90-day period, the board shall first inform the child's parent of the need and reasons for an extension and shall ask the parent to agree in writing to a specific extension of time beyond the 90-day period. If the parent will not agree to an extension the board may request an extension from the division. The board 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 board 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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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 14-year-old resident of the district who is a child with a disability. On October 16, 1997, the district sent a "Notice of Intent to Refer" form to the child's parent informing her that her son had been referred by a district staff member for an evaluation to determine his educational needs. On November 11, 1997, the district sent a form to the parent notifying her of the referral of her son for evaluation for an exceptional educational need. On the same date the district sent a "Notice of Receipt of Referral and Consent for Evaluation" form to the parent indicating the areas which the district proposed to assess, the tests which it proposed to use and identified the titles of the staff who would be assessing the child. The same form also sought written permission from the parent to proceed with the evaluation. The parent did not consent to the proposed evaluation. At least initially the parent believed that additional accommodations to the child's learning needs could be made in the regular education classroom.

In a letter dated March 5, 1998, the child's parent wrote to the district's director of special education requesting a "full M-team evaluation" of her child. This letter indicates that the referral is being made under the Individuals with Disabilities Education Act (IDEA) and it includes reasons why the parent believes her son may have a disability and a need for special education. On March 7 the district acknowledged receipt of this letter on a referral form. A second referral form, containing much of the same information as the first form with several modifications, is dated March 23, 1998. On March 23, 1998, the parent signed a consent form giving her permission for the district to proceed with testing. On June 16, 1998, the district sent the parent a notice of intent to place her son in a special education program, and it requested her consent for the proposed placement. The district did not request the parent to agree to an extension of the 90-day period under s. 115.78 (3), Wis. Stats., nor did it request an extension from the department.

CONCLUSION:

Any person, including a parent, who believes that a child is a child with a disability may submit a referral to a school district. The referral must be in writing and state the reasons why the person believes that the child is a child with a disability. When a child is referred for evaluation by an IEP team, the LEA must evaluate the child and determine whether the child is a child with a disability. A school district has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. In order to provide FAPE, a district, in part, must provide a child with special education and related services in conformity with the child's IEP. The LEA must develop an IEP and send a placement notice for the child within 90 days of the referral. The 90-day period may be extended with the written permission of the parent or by the department.

By letter dated March 5, 1998, the mother referred her son to the district for an evaluation. Her letter indicates that she is making the referral pursuant to IDEA and it includes her reasons for making the referral. The district acknowledged receipt of this referral on March 7, beginning the 90-day time limit. The child's initial IEP and placement were completed on June 16, 1998. The district did not send a notice of placement offer to the parent prior to the expiration of the 90-day time limit on June 5, 1999. In addition, the district did not obtain the written permission to exceed the time limit from the parent or an extension of the time limit from the department. There is a violation regarding issue #1 of the complaint.

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ISSUE #2:

Did the district fail to include required participants on the child's individualized education program (IEP) team?

APPLICABLE STATUTES AND RULES:

Section 115.78, Wisconsin Statutes (Effective May 6, 1998)
Individualized education program team; timeline.

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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777. Each team shall consist of all of the following:
(a) The parents of the child.
(b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment.
(c) At least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability as specified in s. 115.76 (5) (a) or, where appropriate, at least one special education provider of the child.
(d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency.
(e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f).
(f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.
(g) Whenever appropriate, the child.

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FINDINGS OF FACT:

In their letter of complaint, the parent and advocate allege that a school psychologist who had evaluated the child in April 1998 during the eligibility determination process did not attend the June 1, 1998, IEP team meeting during which the child's special education program was developed. The psychologist did submit an evaluation report for consideration during the team meeting that was conducted on May 27, 1998. She also signed the team's report indicating her agreement with the findings of the team. She was not appointed to be a participant on the team which developed the child's special education program and she did not attend the June 1, 1998, team meeting. The team did include four regular education teachers, a learning disabilities teacher, a learning disabilities program support teacher, a teacher of students with other health impairments, an LEA representative, one of the child's parents, and a parent advocate.

CONCLUSION:

State and federal law require school districts to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. When a LEA receives a referral that a child may be a child with a disability, it must appoint a team to determine the child's eligibility for special education and related services. The team must consist of participants specified in state and federal law, including the child's parents; a special education teacher or provider; an LEA representative; and, as appropriate, an individual who can interpret evaluation results; a regular education teacher; and the child. At the discretion of the parent or the LEA, other individuals may participate. The June 1, 1998, IEP team included individuals in each of the required roles. There is no violation regarding issue #2 of the complaint.

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ISSUE #3:

Did the district fail to implement modifications and adaptations in the child's IEP permitting the use of a calculator, requiring supplementation of class notes in math and social studies with teacher or peer's notes, requiring weekly meetings between the parent and the learning disabilities teacher, requiring that tests are to be graded by teachers, and prohibiting lowering the child's grade based on behavior?

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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(9) "Individualized education program" means a written statement for a child with a disability that is developed, reviewed and revised in accordance with s. 115.787.

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(15) "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child's parents, to meet the unique needs of a child with a disability, including instruction in physical education.

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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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(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.
(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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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix C, Question 45

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.

FINDINGS OF FACT:

The district held a series of IEP team meetings to review and revise the IEP of the child whose education is the subject of this investigation. The IEP in effect for the first semester of the 1998-99 school year was developed on June 1, 1998. Subsequent revisions to that IEP occurred in IEP team meetings on September 17, September 29, October 8, and November 5, 1998. The district documented the revisions on plain paper. For each team meeting, the district noted the student's name, the date of the IEP team meeting, and that the paper replaced pages 3 and 4 of the June 1, 1998, IEP. An IEP team met on December 21, 1998, and revised the IEP by completing a new set of IEP forms.

The complaint alleges that the math teacher did not allow the child to use a calculator during class. The June 1, 1998, IEP, subsequent revisions, and the December 21, 1998, IEP all required the district to allow the child's use of a calculator (except when math operations were tested). The IEP did not require the teacher to physically hand the child a calculator during class. During the fall semester through October 19, 1998, the math teacher allowed the child to use a calculator during math class and to complete his homework. During class, a calculator was available in the classroom for the student to use; often, the teacher would place a calculator on the edge of the student's desk. If the teacher forgot, the student could retrieve the calculator himself or ask for the calculator.

The June 1, 1998, IEP, subsequent revisions, and the December 21, 1998, IEP all required the district to provide teacher/peer notes, as needed, to the child as a form of notetaking assistance. The complaint alleges that the district failed to provide this assistance in math and social studies.

In social studies, the teacher required students to take notes during the periods when the class reviewed a chapter. The teacher copied student's notes during these periods and gave them to the child for review. During the rest of the class periods, the teacher did not require students to take notes because all materials covered in the class were presented in the reading materials. In addition, the class followed a discussion format, which was difficult to encapsulate in note form. In his 12 years of teaching, the teacher could not recollect one student who took notes during his classes, except during the review sessions. Further, the teacher did not prepare notes for the class. Instead, he let the students' interests and comments lead the discussion during class. In the child's math class, students took notes on an almost daily basis. The math teacher provided notes to the student on September 22, September 25, October 1, and October 6, 1998.

The June 1, 1998, IEP and subsequent revisions required "weekly home reports." Beginning August 28, 1998, the district sent written weekly reports to the parent. Each report contained an account of the child's behavior and performance for the week. Teachers in language arts, social studies, English, home economics, physical education, science, math, and technical education provided individualized accounts.

The December 21, 1998, IEP required "communication with home on a weekly basis." The district continued to provide the weekly reports to the parent. In addition, the special education teacher spoke with the mother on an almost daily basis via telephone.

The complaint alleges that teachers were required to review peer grading of tests before returning the test to the student. The IEP provisions in effect during the time period under investigation did not include a requirement to this effect.

The complaint alleges that teachers were prohibited from lowering the student's grade as a result of his behavior in class. This was not a requirement until December 21, 1998; then, the IEP stated that "[the child] will not be graded for behavior" in home economics. The IEP did not further define "behavior," nor did it suggest how the child's performance in the home economics class should be graded. From December 21, 1998, through January 20, 1999, the home economics class participated in a sewing unit. In grading the students for this unit, the teacher considered the following five factors: safe and appropriate use of the sewing machine, time management, effort in achieving quality work, cleanliness of personal and shared space, and cooperation with other in cleaning the room and sharing equipment. All of these factors relate to student "behavior." The teacher gave the child a grade. The teacher stated that she believes she did not lower the student's sewing unit grade as a result of his behavior.

CONCLUSION:

A local educational agency has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with FAPE, a district must provide special education and related services consistent with the child's IEP, and it must implement the provisions in the IEP.

The IEPs in effect during the time period covered by this investigation required the district to provide notetaking assistance as needed, allow use of a calculator, and communicate weekly with the parent. The district's almost daily communication with the parent, along with the weekly written reports, clearly met the communication provisions in the IEPs. With respect to notetaking assistance in social studies and the use of a calculator, the district complied with the IEP. The district did not provide math notetaking assistance to the child to the extent that notes were taken in class. Thus, the assistance was not as frequent as required by the IEP. The complaint, regarding issue number #3, is substantiated in this regard.

 

grading of tests before returning the test to the student. The IEP provisions in effect during the time period covered by this investigation did not include a requirement to this effect. The complainants also allege that teachers were prohibited from lowering the student's grade as a result of his behavior in class. This was not a requirement until December 21, 1998; then, the IEP prohibited the home economics teacher from grading the child for behavior. The home economics teacher made a good faith effort to refrain from grading the child based on behavior. However, each of the factors on which she graded all students in the class relates to student behavior. The department believes that the IEP provision relating to this issue was not focused sufficiently to enable the teacher to grade the student appropriately. Because the teacher applied the IEP's behavior-related factors in grading the complainant's child, the complaint is substantiated in this regard.

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ISSUE #4:

Did the district fail to permit the child's parent to inspect and review the child's education records in a timely manner?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wisconsin Statutes
Pupil records.

(1) DEFINITIONS. In this section:
(a) "Behavioral records" means those pupil records which include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil's behavior, tests relating specifically to achievement or measurement of ability, the pupil's physical health records other than his or her immunization records or any lead screening records required under s. 254.162, peace officers' records obtained under s. 48.396 (1m) and any other pupil records that are not progress records.

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(c) "Progress records" means those pupil records which include the pupil's grades, a statement of the courses the pupil has taken, the pupil's attendance record, the pupil's immunization records, any lead screening records required under s. 254.162 and records of the pupil's school extracurricular activities.

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(d) "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent under s. 115.28(7) to hold a certificate, license or permit if such records and notes are not available to others, nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.
(2) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m). The school board shall adopt regulations to maintain the confidentiality of such records.
(a) A pupil, or the parent or guardian of a minor pupil, shall, upon request, be shown and provided with a copy of the pupil's progress records.
(b) An adult pupil or the parent or guardian of a minor pupil, shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

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34 CFR 300.502 Opportunity to examine records.

The parents of a child with a disability shall be afforded, in accordance with the procedures of ss. 300.562-300.569, an opportunity to inspect and review all education records with respect to--
(a) The identification, evaluation, and educational placement of the child * * * .

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34 CFR 300.560 Definitions.

As used in ss. 300.560-300.576--

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Education records means the type of records covered under the definition of education records in part 99 of this title (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes--

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(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records * * * .

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34 CFR 99.3 What definitions apply to these regulations?

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Education records. (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Division of Learning Support: Equity and Advocacy Information Update Bulletin 98.02, 1998

2. What are pupil records?

All records directly related to a student and maintained by the school district are pupil records. * * * School districts maintain various categories of records, including those categorized as "behavioral records" and others categorized as "progress records." "Behavioral records" means those pupil records which include * * * tests relating specifically to achievement or measurement of ability * * * .

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16. What are the rights of parents of children with EEN to access pupil records?

A parent of a child with EEN must, upon request, be shown and provided with a copy of pupil records. * * * A school district must comply with a request for access to records without unnecessary delay * * * . In all cases, the school district must comply with a parent's request within 45 days. * * *

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Letter to the unnamed inquirer, Office of Special Education Programs (OSEP), U.S. Department of Education, March 31, 1998, 30 IDELR 539.

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[T]he education records of a child, * * * are those records directly related to a child and maintained by the educational agency, or a party acting for the educational agency, on behalf of a child. See 34 CFR ss. 300.560 & 99.3. Examples of such records would be the child's individualized education plan (IEP), tests taken by the child, evaluations of the child, and other documents created in connection with the child's educational performance and conduct.

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FINDINGS OF FACT:

In a letter dated September 29, 1998, to the principal of her son's school, the child's mother requested copies of three of her son's classroom tests. The principal responded to this letter on October 13, 1998, by indicating that the parent could have access to the tests at a meeting scheduled for several days later. The letter indicates that this is the same process which is used by the district when any parent makes such a request. In a letter dated October 15, 1998, the parent wrote to the district administrator asking that he explain why her request for copies of her child's tests would not be granted. In a letter dated the following day, the district administrator confirmed that it is district policy not to provide copies of classroom tests to parents, although the district does make copies of a test available to the parent for review. The letter clearly denies the parent's request to have copies of the three tests which she requested. An IEP team meeting was conducted on November 5, 1998, to review the child's IEP. The district did not provide copies of the tests to the parent prior to this meeting nor within 45 days of the parent's request. In its response to the complaint, the district maintains its position that "teacher-made tests used in the classroom to monitor student progress are not pupil records or behavioral records" and that it is not required to give copies of such tests to parents on request.

CONCLUSION:

A district must comply with a parental request for access to their child's educational records, and for copies of the child's behavioral and progress records without unnecessary delay, and before any meeting regarding an IEP or a due process hearing, and in no case more than 45 days after the request has been made. Under state law behavioral records include "tests relating specifically to achievement or measurement of ability." Classroom tests fall within this definition and as a consequence are pupil records, copies of which must be given to parents when requested. The parent requested copies of three of her son's classroom tests. The district did not provide copies of these tests to the parent prior to an IEP team meeting which was held on November 5, 1998. There is a violation regarding issue #4 of the complaint.

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ISSUE #5:

Did the district fail to discuss IEP provisions relating to the child's behavior at an IEP team meeting?

ISSUE #6:

Did the district fail to include a statement of transition services in the child's IEP?

ISSUE #7:

Did the district improperly exclude the child from the regular education math program?

ISSUE #8:

Did the district fail to provide an educational placement to implement the child's IEP?

APPLICABLE STATUTES AND RULES:

115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under s. 115.787.
(c) Determine the special education placement for the child under s. 115.79.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

(1) REQUIREMENT THAT PROGRAMS MUST BE IN EFFECT. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.
(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

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(g) 1. Beginning when the child attains the age of 14, and annually thereafter until the child is no longer eligible for special education and related services, a statement identifying the courses of study needed to prepare the child for a successful transition to his or her goals for life after secondary school, such as participation in advanced placement courses or a vocational education program.

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115.79, Wisconsin Statutes
Educational placements.

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

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(2) An educational placement is provided to implement a child's individualized education program. * * *

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Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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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. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.
(2) NOTICE. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and 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).

34 CFR 300.343 Meetings.

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(d) Review. Each public agency shall initiate and conduct meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year.

ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 97-066, 1/28/99.

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Whenever a district develops, reviews, or revises a child's IEP, it must hold an IEP team meeting that meets the requirements in the law. The IEP must include a statement of the specific special education and related services to be provided to the child. A district may not make revisions to any element in a child's IEP without discussing the revisions at an IEP team meeting.

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Department of Public Instruction, Learning Support/Equity and Advocacy Information Update Bulletin 98.10, 1998

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22. What is the difference between the transition requirements for 14-year-olds and for 16-year-olds?

At age 14 and annually thereafter, a child's IEP must include a statement that identifies the courses of study needed to prepare a child for postsecondary goals.

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FINDINGS OF FACT:

On December 21, 1998, an IEP team met to review the child's IEP. District staff members appointed to the IEP team included the principal of the child's school, the special education coordinator, two special education teachers, five regular education teachers, and one program support teacher. The mother and an advocate also attended the meeting. As a result of the meeting, the child's program was revised and a new IEP was completed.

During the meeting, district staff raised concerns regarding the child's behavior. They reported instances when he had made comments about guns, they reported feeling threatened by him in their classes, and they reported being unable to exert appropriate authority over him. The mother and her advocate did not agree with district staff that the child's behavior had escalated during the first semester of the 1998-99 school year.

At one point, district staff asked the mother to participate in developing a behavior plan. The mother indicated that she was unwilling to do so. During the subsequent discussion, district staff and the child's mother continued to disagree about the child's behavior and other topics unrelated to behavior. During these discussions, two district staff discussed provisions of a behavior plan which they then drafted. The IEP team did not discuss this proposal or any other behavior plan during the December 21, 1998, meeting. However, the IEP which was implemented following the December 21 meeting includes a behavior plan.

The child's 14th birthday had occurred two months prior to the December 21, 1998, IEP team meeting. The "Summary of Transition Services" page of the IEP which was developed during this meeting includes a description of the courses of study needed to prepare the child for a successful transition to his goals for life after secondary school. The description of the courses of study, in its entirety, reads "[child] will explore elective options for high school." This page of the IEP also indicates that someone talked with the student concerning his interests and preferences. Although the district sent a written invitation for the meeting to the child, he did not attend the IEP team meeting. The child's IEP was revised during a meeting on February 10, 1999. The IEP provides that a "Form I-3 Transition page is to be completed for children 14 or older." The IEP does not include such a form and does not include a description of the courses of study needed to prepare the child for a successful transition to his goals for life after secondary school.

The child's education record contains a hand-written note, dated October 14, 1998, from his mother giving permission for him to begin attending a math class taught by a learning disabilities teacher. The IEP which was in effect on this date indicates that the child is to attend regular education classes. The student participated in a regular education classroom for math until October 19, 1998, when he began receiving math instruction in a LD classroom. The next IEP team meeting relating to this child's education was conducted on November 5, 1998. The child's mother and an advocate attended this meeting. As a result of the meeting, the child's IEP was revised to provide that he attend a math class taught by a learning disabilities teacher. On the page of this IEP which contains the child's goals and objectives for math, the present levels of educational performance are described as follows: "[Child] was doing poorly in a regular education math class. His first quarter grade was a D. He has been doing well in a pull-out math class for the last three weeks and the IEP team has decided to make this a permanent change."

The notice of placement which was in effect during the time period covered by this complaint is dated June 16, 1998. The placement remained in effect until February 10, 1999. No notice of placement which meets the requirements of the law was sent to the parent between June 1998 and February 1999. The notice of placement form utilized by the district in June 1998, included a required element justifying the placement, including noting the reasons for removals from the regular education environment. The notice of placement for this student indicates that the he will receive itinerant instruction and that he will not be removed from regular education classes. Beginning October 19, 1998, the child began receiving instruction for math in the LD classroom. The child's IEP was revised during a November 5, 1998, IEP team meeting to effect this change in the June 16, 1998, placement. The district did not send notice to the parent of this placement change. The child's placement was revised during a February 10, 1999, IEP team meeting. The district provided notice to the parents of the placement determination and the IEP developed during the meeting included a determination that the child would not participate with nondisabled students in math class.

CONCLUSION:

Whenever a district develops, reviews, or revises a child's IEP, it must hold an IEP team meeting that meets the requirements in the law. The IEP must include a statement of the specific special education and related services to be provided to the child. A district may not make revisions to any element in a child's IEP without discussing the revisions at an IEP team meeting. At the IEP team meeting held December 21, 1998, district staff proposed developing a behavior plan for the child. A behavior plan was drafted by two district staff members during the meeting. The IEP team did not discuss this proposal or any other behavior plan during the meeting. The IEP which was implemented following this IEP team meeting included a behavior plan which was not discussed during the meeting. There is a violation regarding issue #5 of the complaint.

The law requires that beginning no later than age 14 and at a younger age, if appropriate, a child's IEP contain an annual statement identifying the courses of study needed to prepare the child for a successful transition to his or her goals for life after secondary school. The purpose of this statement is to focus on the planning of a student's courses of study during the student's secondary school experience, including, for example, whether the student will participate in advanced placement or vocational education courses. The statement in this student's December 1998 IEP does not provide sufficient focus to meet this purpose. The statement does not give even a general direction toward which the IEP team anticipates that the child would be moving. The statement is missing from the February 10, 1999, IEP. There is a violation regarding issue #6 of the complaint.

The student participated in a regular education classroom for math until October 19, 1998. Beginning on that date, the child received math instruction in a learning disabilities classroom. This was a change in the child's program which could be made only by convening an IEP team meeting. In this instance the change in the child's special education program was made prior to a meeting of the IEP team, although the parent did give her consent to the change. It was not until November 5, 1998, that an IEP team met to revise the child's IEP to provide that he would receive math instruction in the LD classroom. There is a violation regarding issue #7 of the complaint.

When a district changes a child's educational placement, the district must send the child's parent a placement notice that meets the requirements in the law. The notice of placement dated June 16, 1998, provides that the child will not be removed from regular education classes. On October 19, 1998, the child began attending math class in the LD classroom. The child's IEP was revised on November 5, 1998, and provides that the child will receive math instruction in the LD classroom. Although the parent was aware of, and consented to, this change, the district did not send written notice meeting the requirements of the law to the child's parents prior to initiating a change in the child's educational placement. There is a violation regarding issue #8 of the complaint.

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DIRECTIVE:

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

  1. Provides timely notice of placement to the parents of children who have been determined eligible to receive special education and related services following receipt of special education referrals. (Issue #1)
  2. Provides special education and related services to children with disabilities consistent with each child's IEP. (Issue #3)
  3. Provides copies of student records without unnecessary delay following a parental request, including providing copies of the records requested by the parent who filed this complaint. (Issue #4)
  4. Does not include provisions in a child's IEP without discussing them at an IEP team meeting. (Issue #5)
  5. Includes in the IEPs of children aged 14 and older, including for the child involved in this investigation, a statement identifying the courses of study needed for a successful transition to each child's goals for life after secondary school. (Issue #6)
  6. Does not remove children with disabilities from the regular education environment prior to convening an IEP team meeting. (Issue #7)
  7. Provides required written notice to parents prior to changing the educational placement of children with disabilities. (Issue #8)

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.

signed JSP
9/16/99
______________________________________________
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