On March 5, 1999 (letter dated March 5, 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 conducting this investigation, department staff reviewed the child's relevant education records and materials submitted by the complainant and the district. Department staff spoke by telephone with the complainant.
APPLICABLE STATUTES AND RULES:
Wisconsin Statutes, Section 115.782
Section 115.782 Evaluations.
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(3) Determination of eligibility for special education. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability.
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(c) If the individualized education program team determines that a child is not a child with a disability, the team shall prepare an evaluation report. The report shall identify any educational needs of the child and any services offered by the local educational agency from which the child may benefit and shall include information about any programs and services, other than those offered by the local educational agency, that may benefit the child. The local educational agency shall give a copy of the evaluation report to the child's parents with the notice under s. 115.792 (1) (b).
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Wisconsin Statutes, Section 115.792
Section 115.792 Procedural safeguards.
(1) SAFEGUARDS ENSURED. (a) The local educational agency shall establish and maintain procedures to ensure all of the following:
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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child¿.
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Wisconsin Statutes, Section 118.125
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(1) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m).
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(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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(e) Upon the written permission of an adult pupil, or the parent or guardian of a minor pupil, the school shall make available to the person named in the permission the behavioral records as determined by the person authorizing the release¿.
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34 CFR 99.3 What definitions apply to these regulations?
The following definitions apply to this part:
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"Disclosure" means to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means.
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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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"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.
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34 CFR 300.345 Parent participation.
(a) Each public agency shall take steps to ensure that one or both of the parents of the child with a disability are present at each meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend ¿.
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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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(3) The right to have a representative of the parent inspect and review the records.
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34 CFR 300.571 Consent.
(a) Parental consent must be obtained before personally identifiable information is--
(1) Disclosed to anyone other than officials of participating agencies collecting or using the information under this part, subject to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement under this part.
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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:
Department of Public Instruction, Exceptional Education/Pupil Services Information Update Bulletin 98.02, January 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. 115.80, Wis. Stats.].
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Letter from the Department of Public Instruction to Patricia Yahle (November 11, 1998)
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[T]he document attached to your letter indicates that the parent wishes to appoint an advocate to assist him or her in working with district staff. For instance, the parent, by executing the document, has asked that the district provide on an ongoing basis copies of important special education documents to the advocate, as well as to the parent. Federal and state law require the district to provide notices and other information to parents on an ongoing basis. The department has located no authority which requires districts to copy this information to advocates on an ongoing basis. Parents must receive notices and copies of evaluation reports, IEPs and placements. Districts are required to permit advocates to have access to records at parent request but are not required to send such notices on an ongoing basis, nor are districts required to give copies of records to advocates.
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FINDINGS OF FACT:
On November 9, 1998, the child's mother submitted a special education referral for her son to the district. The child's mother signed a "Consent for Disclosure of Confidential Information" form on November 19, 1998, that authorized the Running Rebels agency to release information about her son to the district. The form states: "I also give my permission for mutual discussion (either in person, by mail, or by telephone) by [Running Rebels] and [the district] regarding your findings, professional opinions, and suggestions for intervention by school personnel.
On November 21, 1998, the child's father signed and dated a form that states:
To: Milwaukee Public Schools
P.O. Box 2181
Milwaukee, WI 53201-2181
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A. I give my permission to disclose all material about my child, [child's last name, first name, middle initial, date of birth] to the WE CARE PARENTS' NETWORK. This includes, but is not restricted to, all material in the Cummulative [sic.] File, all Exceptional Education, all Section 504, all attendence [sic.], and all disciplinary files. This permission includes all psychiatric, psychological, medical, social work, educational testing, conduct, social adjustment, and program advising records. Please make copies of items they request.
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I understand that the school district and DPI operate under the Federal Family Rights and Privacy Act and the statutes of the State of Wisconsin. You are released from all liability on account of the disclosure of any information to WE CARE that I have requested you to disclose in this consent. This consent is valid for one year from the signature date.
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C. Please send a duplicate copy of all formal correspondence sent to me to the WE CARE PARENTS' NETWORK, 835 N. 14th Street Suite 122, Milwaukee, WI 53233, for example, notices of M-team meetings, M-team decisions, IEP meetings, and Suspensions.
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The form was provided to the district. An IEP team meeting was held for the child on January 21, 1999, to determine initial eligibility for special education, develop an IEP, and determine initial placement. The district sent the child's parents written notice of the IEP team meeting. The district did not send written notice of the meeting to the parents' advocate at the We Care Parents' Network.
The child's mother and advocate attended the January 21 IEP team meeting. A representative from the Running Rebels agency also attended the IEP meeting by invitation of the child's mother. At that meeting, the child's mother and advocate requested additional time. The IEP team was scheduled to reconvene on February 2, 1999. That meeting was rescheduled to March 4, 1999, upon request of the child's mother and advocate. The district sent prior written notice of the February 2 and March 4 IEP team meetings to the parents. The district did not send notice of the meetings to the parents' advocate or to the Running Rebels representative.
The child's parents did not attend the March 4, 1999, IEP team meeting. The parents did not inform the district that they would not be attending the meeting. The complainant alleges that the district violated confidentiality provisions of the pupil records law by permitting a representative from Running Rebels to attend the March 4 IEP meeting. District staff did not invite a Running Rebels representative to the meeting, but a representative did attend the March 4 IEP team meeting. District staff believed the parent(s) had invited the Running Rebels representative to the March 4 IEP team meeting. The parent's advocate arrived an hour late, as the IEP team meeting was concluding, and requested that the district provide him with the evaluation report. District staff informed the advocate that the parents would be provided with a typed copy of the evaluation report within a week. The district did not provide the advocate with a copy of the evaluation report.
The parents received a copy of the evaluation report on March 10, 1999. The evaluation report states that the IEP team determined that the child does not have a disability under IDEA, explains the impairments that were considered, and the reasons the impairments were rejected.
A district must notify parents of an IEP team meeting early enough to ensure they will have an opportunity to attend. Districts are not required to notify advocates who are invited by parents to meetings.
In this case, the district sent prior written notice to the child's parents of all IEP team meetings scheduled during the 1998-99 school year. The child's father signed a form requesting that the district also provide such notices to the parent's advocate. The district did not send written notices of IEP team meetings to the advocate. There is no violation with regard to issue #1.
Districts must provide parents with copies of evaluation reports. Districts are required to permit a parent representative to have access to records at parent request but are not required to give copies of records to parent representatives. Here, the district provided the child's parents with a copy of the evaluation report six days after the IEP team meeting was held. The district did not send a copy of the report to the advocate. The advocate did not request access to the report after it was prepared. There is no violation with regard to issue #2.
All pupil records maintained by a public school are confidential, with certain exceptions. Generally, a school district must obtain parental consent before personally identifiable information from an education record is disclosed. Here, the child's parent signed a consent form allowing the district and the Running Rebels agency to engage in discussion regarding "findings, professional opinions, and suggestions for interventions" about the child. The child's parent invited a representative from Running Rebels to attend the January 21 IEP team meeting and did not indicate that the representative should not attend the reconvened IEP team meeting. There is no violation with regard to issue #3.
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.
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
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy