IDEA Complaint Decision 99-012

On February 22, 1999 (letter dated February 15, 1999; facsimile transmitted February 16, 1999; and letter dated February 20, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Madison Metropolitan 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 written records provided by the complainant and the district. In addition, department staff interviewed the complainant, the vice principal, and the relevant regular education teacher.

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ISSUE #1:

the district fail to provide special education and related services consistent with the child's IEP during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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

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Section 115.77, Wisconsin Statutes
Local educational agency duties.

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

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

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, 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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34 CFR 300.8 Free appropriate public education.

As used in this part, the term "free appropriate public education" means special education and related services that--

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(d) are provided in conformity with an IEP that meets the requirements of ss. 300.340-300.350.

34 CFR 300.346 Content of individualized education program.

(a) General. The IEP for each child must include--

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(3) A statement of the specific special education and related services to be provided to the child * * *.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Questions 16 and 45

16. If a child with a disability is enrolled in both regular and special education classes, which teacher should attend the IEP meeting?

* * * If the regular education teacher does not attend, the agency should either provide the regular teacher with a copy of the IEP or inform the regular teacher of its contents.

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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.

FINDINGS OF FACT:

In February 1996, the district determined that the child whose education is the subject of this investigation is a child with a disability. Since that time, the child attended school in the Madison Metropolitan School District and received special education and related services.

The district developed the current IEP on May 29, 1998, in a meeting attended by a local educational agency representative, a parent of the child, special education teachers, a regular education teacher, and a social worker. The IEP included a behavior plan which was modified via a hearing officer's order (dated January 13, 1998) to read:

When [the youth] displays and [sic.] behavior which is not serious or illegal conduct life threatening [sic.], the following discipline procedure will be used:

1. [The youth] will be cued/redirected by an adult to exhibit more appropriate behavior.

2. An adult will give [the youth] a warning as to the consequences of his continuing behavior.

3. Alternative physical space and the use of alternative physical intervention will not be used with [the youth] to manage disruptive behavior other than that which clearly endangers others. If [the youth] refuses to heed the adults warning after five minutes, an adult will contact the parent via telephone and/or an identified support staff. Parent and/or other support staff will direct [the youth] to "take a break" in a detention room, time out room, office, "other safe place" or wherever an adult is available to supervise him. If [the youth] needs to walk briskly to relieve acute stress, an identified adult will keep [the youth] in eye sight, not block him, touch him, threaten nor intimidate him, and/or yell and chase him. If [the youth] chooses or staff is made aware in any fashion that [the youth] needs to leave the building, [the youth's mother] will be personally notified if he leaves school grounds. If she is not personally available to take a phone call, a message will be left that states, "[The youth] has left the school grounds." And [the youth's mother] will call back to confirm. [An alternative adult] will be notified if [the youth's mother] is not available. If neither [the youth's mother] nor [the alternative adult] are available the police shall be contacted.

4. After processing with identified support staff or parent, [the youth] will be asked to re-enter his educational program.

5. If [the youth] is not ready or refuses to re-enter his educational program, then a second adult may be contacted or mother may be called again to assist [the youth] is his decision making. He will be given clear, concise, appropriate choices and the consequences for each choice. He will be given additional time to process these choices in a safe, structured, supervised environment.

6. After additional time, if [the youth] chooses to re-enter his educational program, but continues to have problems and/or difficulties, he may choose to go home for remainder of day and mother will be contacted.

[The youth] will be involved in describing positive reinforcers for appropriate behavior. [The youth] will be involved in a non-aversive behavior management program. This program will include pro-active strategies and use of relaxation techniques, identification of adults that can support [the youth] in the school environment during a crisis, and the reinforcement of anger control techniques that [the youth] will earn through a behavior system.

Staff development for effective aggression management is recommended.

The IEP was implemented on August 24, 1998. During the 1998-99 school year, the child attended Memorial High School. The child attended a regular education health class. On February 12, 1999, the child became agitated in the classroom and wanted to leave the classroom. The regular education teacher blocked the doorway, and physical contact occurred.

Prior to February 12, 1999, the teacher had neither a copy of the IEP nor knowledge of the IEP's contents.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide a FAPE to a child in part by providing special education and related services in conformity with a proper IEP. The IEP must specify special education and related services to meet the child's needs. Regular education teachers must have knowledge of and implement relevant portions of a child's IEP.

The IEP included a behavior plan to be used whenever the youth "displays any behavior which is not serious or illegal conduct life threatening [sic.]." On February 12, 1999, the child exhibited such behavior; the regular education teacher did not have knowledge of and did not implement the required disciplinary response. There is a violation in regard to issue #1.

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ISSUE #2:

Did the district fail to provide the parent with an opportunity to review records after a written request by the parent during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 118.125, Wis. Stats. (Effective August 10, 1998) Pupil records.

(1) DEFINITIONS. In this section:
(a) "Behavioral records" means those pupil records which include psychological tests, personality evaluations, record 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) A 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 300.562 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.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Exceptional Education/Pupil Services Information Update Bulletin 98.02, 1998

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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. Also, the parent has a right to have a representative of the parent inspect and review the records. A school district must comply with a request for access to records without unnecessary delay and before any meeting regarding an individualized education program (IEP) or a hearing under sec. PI 11.10, Wis. Admin. Code. In all cases, the school district must comply with a parent's request within 45 days.

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FINDINGS OF FACT:

On a date in December 1998, the district received a handwritten letter from the youth's mother regarding an incident that occurred on December 10, 1998. At the end of the letter, the mother wrote, "I have not received copy's [sic.] of incident reports occurred this year. I am requesting these if placed in [the child's] file¿or records review if not provided." (emphasis in original)

The district did not have any incident reports prior to the December 1998 letter in the youth's file. The principal maintained notes for personal use. The notes were not available to anyone else and were not included in the youth's file.

In a phone call, the principal communicated to the youth's mother that the child's records were available for her review at any time. On several other occasions, the district reiterated this policy to the mother. The mother has chosen not to review the records.

In a letter dated February 23, 1999, the mother requested "copies of all behavioral records for 8th and 9th grades."

Since the request, the district has not held an IEP meeting. There has been no due process hearing relating to the youth.

The 45th day after the request was April 8, 1999. The district did not send copies of the youth's behavioral records to the mother before April 8, 1999.

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.

A December 1998 letter from the youth's mother requests the district to either allow her to review this school year's incident reports or to provide her copies of them. No incident reports existed prior and the school agreed to permit the mother to review the records at any time convenient to her. There is no violation in this regard.

However, the district did not provide copies of records within 45 days after the mother's February 23, 1999, written request for copies of the youth's behavioral records. There is a violation in this regard to issue #2.

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DIRECTIVE:

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

  1. all teachers of the youth whose education is the subject of this complaint have access to the youth's IEP and are informed of their specific responsibilities relating to implementing the IEP (issue #1);
  2. all teachers of children with disabilities have access to the child's IEP and are informed of their specific responsibilities relating to implementing the IEP (issue #1);
  3. the district provides special education and related services consistent with a child's IEP (issue #1);
  4. the district complies with parental requests for copies of their children's behavioral and progress records without unnecessary delay, 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 (issue #2).

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/PTH
4/19/99
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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