IDEA Complaint Decision 99-005

On January 22, 1999 (letter dated January 21, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. 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 investigating this complaint department staff reviewed communications from the complainant, the child's pupil records, a written statement from the district and the district's registration and attendance procedures. Department staff interviewed the complainant, the child's mother, the child, the district director of parent and student services, a special education supervisor, a school social worker, a designated vocational education instructor, the child's special education teacher, three assistant principals and the principal of the child's school.

===========================

ISSUE:

Did the district deny a student a free appropriate public education (FAPE) when the district dropped the student from her school of attendance and did not provide an educational placement to implement the child's individualized education program?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
Definitions.

In this subchapter:

* * *

(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.

* * *

(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.

* * *

Wisconsin Statutes, Section 115.77
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

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

* * *

(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.

* * *

(2) Duties of Team. The individualized education program team shall do all of the following:
(a) Evaluate the child under s. 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.
(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.

* * *

Wisconsin Statutes, Section 115.79
Educational placements.

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

* * *

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

* * *

Wisconsin Statutes, Section 115.792
Procedural safeguards.

(1) SAFEGUARDS ENSURED.

* * *

(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.

* * *

Wisconsin Statutes, Section 118.15
Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

* * *

Wisconsin Statutes, Section 118.16
School attendance enforcement.

(1)In this section:
(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and s. 118.15 for part or all of 5 or more days on which school is held during a school semester.

* * *

(c) "Truancy" means any absence or part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of s. 118.15.
(2) The school attendance officer:
(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under s. 118.15.

* * *

(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under s. 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

* * *

(cr) After the notice required under par. (cg) has been given, shall notify the parent or guardian of a habitual truant of the habitual truant's unexcused absences as provided in the plan under s. 118.162 (4) (a). After the notice required under par. (cg) has been given, par. (c) does not apply.

* * *

(4) (b) No public school may deny a pupil credit in a course or subject solely because of the pupil's unexcused absences or suspensions from school. The attendance policy under par. (a) shall specify the conditions under which a pupil may be permitted to take examinations missed during absences, other than suspensions, and the conditions under which a pupil shall be permitted to take any quarterly, semester or grading period examinations and complete any course work missed during a period of suspension.

* * *

(5) Except as provided in sub. (5m), before any proceeding may be brought against a child under s. 938.13 (6) for habitual truancy or under s. 938.125 (2) or 938.17 (2) for a violation of an ordinance enacted under s. 118.163 (2) or against the child's parent or guardian under s. 118.15 for failure to cause the child to attend school regularly, the school attendance officer shall provide evidence that appropriate school personnel in the school or school district in which the child is enrolled have, within the school year during which the truancy occurred, done all of the following:
(a) Met with the child's parent or guardian to discuss the child's truancy or attempted to meet with the child's parent or guardian and received no response or were refused.
(b) Provided an opportunity for educational counseling to the child to determine whether a change in the child's curriculum would resolve the child's truancy and have considered curriculum modification under s. 118.15 (1) (d).
(c) Evaluate the child to determine whether learning problems may be a cause of the child's truancy and, if so, have taken steps to overcome the learning problems, except that the child need not be evaluated if tests administered to the child within the previous year indicate that the child is performing at his or her grade level.
(d) Conducted an evaluation to determine whether social problems may be a cause of the child's truancy and, if so, have taken appropriate action or made appropriate referrals.
(5m) * * * Subsection (5) (b), (c) and (d) does not apply if the school attendance officer provides evidence that appropriate school personnel were unable to carry out the activity due to the child's absences from school.
(6) (a) If the school attendance officer receives evidence that activities under sub.(5) have been completed or were not required to be completed as provided in sub. (5m), the school attendance officer may do any of the following:
1. File information on any child who continues to be truant with the court assigned to exercise jurisdiction under chs. 48 and 938 in accordance with s. 938.24. Filing information on a child under this subdivision does not preclude concurrent prosecution of the child's parent or guardian under s. 118.15(5).

* * *

ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Individuals with Disabilities Education Act State Complaint No. 91-019, page 7, January 29, 1992.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program...If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

_______________

FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 16-year-old child with a cognitive disability in the ninth grade. August 26, 1998, was the first day of classes in the 1998-99 school year. Between August 26, 1998, and November 19, 1998, the child was present at school on 5 of 58 school days. The child was absent and unexcused on 50 days. Only 3 days were excused absences. On August 28, 1998; October 9, 1998; and February 26, 1999, computer generated notifications were sent to the child and her mother notifying them that the child was absent for at least three consecutive days from one or more classes. On October 14, 1998, the school social worker's assistant went to the child's home and a left a card on the door that contact was attempted. The child's mother called the social worker on October 14, 1998, and the school social worker and the child's mother discussed the child's attendance, and the fact that the mother wanted the child in special education classes with the exception of physical education. The social worker spoke with the parent advocate on October 21, 1998, regarding a special education program and a program called Out Post.

On October 21, 1998, a memo detailing drop procedures for special education students was sent to all district principals. The memo states:

The attendance procedures published by the district are to be used for all students, but if the student has special education status and is a "no-show" or habitual truant, a NON-SEN referral is made to the school social worker who provides:
1. A determination of the status and location of the student.
2. Documentation to the principal for updating status codes.
3. Documentation and information to the special services supervisor for update or special education records.
4. A school social work form for the student file.

The school may drop the special education student when it has been determined that the family/student has left the MPS district, cannot be located, or if a request for records is received from another school or school district. In addition, district attendance/truancy procedures will be followed as found in the MPS rules, policies, and procedures book. (emphasis added)

Step 6 of the "Attendance Procedures For The Milwaukee Public Schools" states:

6. The social worker should respond to the school within three weeks of the date to the referral. If truancy continues, the school social worker and school must initiate a referral to the District Attorney's office through the Department of Student Services. The student is placed on inactive status during this period of time. (emphasis added)

On October 23, 1998, the school attendance secretary sent habitual truancy letters to the parents of students who were on the district habitual truancy list. This child's name was included on the district list. The child's mother told department staff that she did not receive any of these notifications or letters regarding her daughter's truancy. The social worker did not submit a truancy referral for the district attorney. The social worker spoke with the parent advocate on October 25 and November 3, 1998, regarding a special education program and a program called Out Post. The special education supervisor also communicated with the advocate and attempted to contact the child's mother.

The district conducted an individualized education program (IEP) team meeting for the child on November 19, 1998. The IEP team determined that the child's IEP services would be delivered at the child's current placement, Marshall High School. The child's mother was unable to attend the meeting. The child's November 19, 1998, IEP includes a behavior plan to address the child's school absence, which impedes her learning.

On December 17, 1998, the school social worker completed a school social work attendance report and stated: "Many attempts to get (child's name) to school. Administrators discretion whether to drop from rolls." Between August 28, 1998, and December 28, 1998, the child was present at school on 5 of 77 school days. On December 29, 1998, the child was assigned a "000" computer code indicating that she was dropped from the school of attendance and was not given a new code to indicate a new school assignment. In order for the child to be reassigned to the school, the child and her mother needed to contact a building administrator or person designated by an administrator.

The child's attendance record is blank between January 11, 1999, and February 16, 1999. When the child reported to school in January, she attended a special education classroom, but she was not provided the services required by her IEP. The child left school and went home. On January 19, 1999, the child called her special education teacher to inquire about her semester final exam schedule for January 19, 20, and 21, 1999. The special education teacher told the child that she had been dropped from the high school. The special education classroom teacher called the child's home back and told the child's mother that the child could return to school and take her exams. On January 19, 1999, the advocate called the special education supervisor. The special education supervisor spoke to the advocate and the child's mother, informing them that the child should return to school. The supervisor stated that accommodations would be made for the child to take her class exams on January 20, 1999. The child did not return to the school to take her exams or for classes. The child was reassigned a computer code for assignment to the school on February 2, 1999.

On February 8, 1999, at an IEP meeting a new IEP was developed and placement at a different school determined by the team. The child and the child's mother were present at the IEP meeting. The February 8, 1999, notice of placement indicates that the placement will begin on February 9, 1999. The district computerized attendance records indicated that the child entered the new school February 11, 1999. The child attended on only two days, February 11 and 12, 1999. Daily phone calls are made to the child's home to encourage her to come to school.

_______________

CONCLUSION:

A school district meets its obligation to provide a free and appropriate public education (FAPE) to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement. When a district proposes to change the child's educational program or placement, the district must send the child's parents a notice of its proposal a reasonable amount of time before implementing the change. If the parents fail to cause their child to attend school regularly, the district should initiate truancy proceedings against the parents.

In October 1998 the district notified the child's mother of the student's habitual truancy. On November 19, 1998, after the child had missed 53 of 58 school days, the district held an IEP team meeting and determined that the child's placement would continue at her current school of placement. A notice of placement was not sent to the parent because the child's placement did not change. The child continued to be truant from school.

On December 29, 1998, the district dropped the child from her school, changing the child's educational placement, because of her poor attendance, without an IEP team meeting and without proper notice. The district did not initiate truancy proceedings against the parent with a district attorney referral. The district had a duty to investigate the child's status and take appropriate action to provide the child FAPE, rather than discontinuing the child's school assignment in December 1998. It was not until February 8, 1999, that the district conducted an IEP team meeting and determined a new placement. The district failed to take action timely to provide the child FAPE. The complaint is substantiated.

_______________

DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district will:

  1. within a reasonable amount of time after the district learns that a child with a disability is not attending school, take steps to provide the child with FAPE, and
  2. conduct an IEP team meeting to consider whether the child who is the subject of this complaint requires additional services because of the delay in providing FAPE.

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.

_______________

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/PTH
4/23/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

jfd

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