IDEA Complaint Decision 99-014

On March 5, 1999 (letter dated March 4, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public 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 investigating this complaint, department staff reviewed relevant pupil records and written statements for the school district administrator. Department staff also had discussions with the parent and the administrator of special education.

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ISSUE:

After February 16, 1999, did MPS fail to provide a child with a free appropriate public education because it did not have in effect a current individualized education program (IEP) for the child?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
Definitions.

In this subchapter:

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:

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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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Wisconsin Statutes, Section 115.77
Local educational agency duties.

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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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Wisconsin Statutes, Section 115.78
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 date 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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Wisconsin Statutes, Section 115.787
Individualized education programs.

(1) REQUIREMENT THAT PROGRAM 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.

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34 CFR 300.342 When individualized education programs must be in effect.

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(b) An IEP program must--
(1) Be in effect before special education and related services are provided to a child; and
(2) Be implemented as soon as possible following the meetings.

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34 CFR 300.343 Meetings.

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(c) Timeline. A meeting to develop an IEP for a child must be held within 30 calendar days of a determination that the child needs special education and related services.

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34 CFR 300.504 Prior notice; parent consent.

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(b) Consent; procedures if a parent refuses consent.
(1) Parental consent must be obtained before--
(ii) Initial placement of a child with a disability in a program providing special education and related services.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Question 5

5. For a child with a disability receiving special education for the first time, when must an IEP be developed before placement or after placement?

An IEP must be in effect before special education and related services are provided to a child. The appropriate placement for a given child with a disability cannot be determined until after decisions have been made about what the child's needs are and what will be provided. Since these decisions are made at the IEP meeting, it would not be permissible to first place the child and then develop the IEP. Therefore, the IEP must be developed before placement.

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FINDINGS OF FACT:

During the 1998-99 school year, the child who is the subject of this complaint was enrolled as a third grade student at Forest Home Avenue School in Milwaukee Public Schools. On December 16, 1998, the child was referred by a school psychologist for an initial evaluation for the suspected disability of other health impaired (OHI). The reason given for the special education referral was the child's diagnosis of attention deficit hyperactivity disorder (ADHD) and the need for special education services because of OHI. On January 8, 1999, the parent gave consent for the proposed evaluation. On February 1, 1999, the district sent the parent an invitation to a February 16, 1999, IEP team meeting to discuss the results of her son's evaluation and to develop an initial IEP and placement.

On February 16, 1999, the IEP team met to discuss the results of the evaluation. The parent and an advocate attended the meeting. At the meeting, the district determined that the child had a disability of OHI and the need for special education. The team developed the child's IEP goals. At the request of the advocate, the team discussed how the child's regular education teacher could help the child until the IEP was completed. The advocate insisted that these items be incorporated into an "interim" IEP as follows:

Mother will provide spiral notebook to school to include (child) homework assignments and communication between parent and school; Parent will spend two full days in the classroom with (child) during the next week (T&TH); Therapist will be contacted by mother to attend meeting on 2/24/99 at 1:30 p.m.; and Parent will send note to teacher if there is a medication change.

At the February 16, 1999, IEP meeting, the district informed the parent that her child's initial IEP needed to be completed as soon as possible, and that the parent must give consent for her child's placement before the district could provide any IEP services to her child.

On February 24, 1999, the IEP team convened another meeting to continue the development of the child's IEP. The parent and advocate attended the meeting. The advocate was absent for periods of time during this meeting, and the IEP was not completed. The parent requested more time to review the IEP. On March 2, 1999, the district contacted the parent regarding the status of the IEP. The parent informed the district that she had not had an opportunity to review a copy of the IEP with her advocate.

On March 4, 1999, the parent's advocate went to the child's school and requested the child's cumulative folder to search for the child's current IEP. The school gave him a copy of the draft IEP. On March 5, 1999, the advocate filed an IDEA complaint with the department alleging that after February 16, 1999, the district did not have in effect a current IEP for the child.

On March 10, 1999, the district scheduled another IEP meeting to complete the development of the child's IEP. The mother attended the meeting, but her advocate was not able to attend. Because her advocate was absent, the district rescheduled the IEP meeting for March 23, 1999. On March 23, 1999, another IEP team meeting was held to complete the child's IEP. The parent attended the meeting, but her advocate did not attend. The provisions requested by the advocate on February 16, 1999, were incorporated into the child's IEP, completed on March 23, 1999, under an annual goal that reads: "Interim IEP written 2/16/99." At this meeting, the parent signed the consent for placement form for her son to attend Forest Home Avenue School. Copies of the IEP were given to the parent and regular education teacher. The child was placed in special education on March 29, 1999. The district did not request the parent to agree to an extension of the 90-day period under s. 115.78 (3), Wis. Stats.

CONCLUSION:

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. Therefore, the child's IEP must be developed before placement. The LEA must develop an IEP and placement 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. The LEA must implement the IEP as soon as possible after the IEP meetings and the parent consents to initial placement.

The complainant alleges that the district failed to provide a child with a free appropriate public education because the district did not have in effect a current individualized education program (IEP) for the child after February 16, 1999. On February 16, 1999, the district held an IEP team meeting to develop the child's IEP. The district was not required to have an IEP and placement until March 15, 1999. The IEP team decided upon measures to assist the child while the team developed the child's IEP and placement. These measures were included in the child's IEP completed on March 23, 1999. By the time the child's initial IEP and placement were completed, more than 90 days had elapsed from the date the district received the referral. The district did not send a notice of placement offer to the parent prior to the expiration of the 90-day time limit on March 15, 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. The complaint is substantiated.

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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 completes the IEP team process for children with disabilities in a timely manner.

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 the CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective 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, and we are closing this complaint investigation. 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
6/14/99
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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