IDEA Complaint Decision 99-018

On March 4, 1999 (letter dated March 1, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Wisconsin Heights 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 and with the attorney representing the district regarding this complaint.

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ISSUE #1:

During the 1998-99 school year, did the district fail to provide school nursing services to the complainant's daughter consistent with the child's individualized education program (IEP)?

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 * * *.

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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.

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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, Question 51

51. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be * * * stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is an eight-year-old resident of the district who is eligible to receive special education and related services. An individualized education program (IEP) dated December 15, 1998, includes goals that the child independently will seek assistance for a specified activity while at school and that the child will communicate specified needs related to the activity to adults. The IEP requires assistance with the activity four to six times per day and documentation of completion of the activity.

The complainant alleges that on February 18, 1999, the child did not receive services required by her IEP. The child's parents understood that the IEP requires staff to ensure that the activity is initiated and to provide the specified assistance set forth in her IEP a minimum of four times per day. District staff interpreted the language regarding the number of times assistance is to be given in the context of developing independence with regard to the activity and communicating with adults regarding the activity. They did not interpret the IEP to require district staff to ensure the activity is initiated at least four times a day. On the day in question the child received assistance with the activity fewer than four times.

An IEP team meeting was held on March 5, 1999, in order to clarify the provisions of the IEP relating to what district staff must do to assist the child to meet her goals. Specific staff now have been assigned responsibility to ensure that the child actually undertakes the activity a specified number of times, in the event she does not self-initiate.

CONCLUSION:

A district must provide special education and related services to a child with a disability consistent with a proper IEP. The IEP must specify special education and related services to meet the child's needs. The IEP must include a statement of the specific special education and related services to be provided to the child, including the amount of each of the services. The statement of the amount of services must be sufficiently specific to reflect the commitment of district's resources to each service and must be stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. The commitment of services in the child's IEP was not sufficiently specific to reflect the commitment of district resources and the requirements of the IEP for this student were understood differently by staff and the child's parents during the time period covered by this complaint. However, the district took corrective action to address this issue on March 5 by clarifying the district's responsibilities to the child. There is a violation with regard to issue #1.

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ISSUE #2:

During the 1998-99 school year, did the district violate the child's privacy rights when the district improperly disclosed personally identifiable information about the child?

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, 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, law enforcement officers' records obtained under s. 48.396 (1) or 938.396 (1m) and any other pupil records that are not progress records.
(b) "Directory data" means those pupil records which include the pupil's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received and the name of the school most recently previously attended by the pupil.

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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.

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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 pupil's progress records or such portions of the pupil's 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 300.560 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 300.571 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¿.

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34 CFR 300.572 Safeguards.

(a) Each participating agency shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Letter to the Superintendent of Schools, Readfield, Maine, Family Policy Compliance Office (FPCO), U.S. Department of Education, March 31, 1995.

FERPA broadly defines the term [education records] to include virtually any document that is directly related to a student and is maintained by a school. FERPA applies to tangible records and the disclosure of information derived from tangible records. * * * FERPA generally prohibits the nonconsensual disclosure of information derived from education records.

FINDINGS OF FACT:

In February 1999, an article appeared in the local newspaper for the home community of the child whose education is the subject of this complaint. The article uses the child's name and reports on a court action, filed by the child's parents, appealing a due process hearing officer's decision in a special education matter. The court record, including the child's name, is available for review by members of the general public, including the reporter who wrote the story in the local paper. Primarily the article describes the court action, including quoting directly from court pleadings. The article also reports several responses from the school district's administrator during an interview with the reporter. The article includes statements that are her own opinions, as district administrator, regarding the merits of the litigation. The article also includes the statement, made by the district administrator, that the district has "devoted entirely and exclusively to [the child]" the use of a specific portion of the school building during portions of the day.

An IEP for this child, which was developed at a meeting on May 28, 1998, includes a statement that the child will, during portions of the day, use a specified area of the school building, specially designed for her use. The district did not have consent from the parent permitting the disclosure of this information from the student's record.

CONCLUSION:

A school district must preserve the confidentiality of personally identifiable information from a child's education records. Education records are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. Special education records and behavioral records are confidential education records. Parental consent must be obtained before disclosure of personally identifiable information from the record to anyone other than school officials, unless specific exceptions apply.

The complainant has alleged that the district administrator improperly disclosed to the press personally identifiable information from her daughter's school records. In February 1999, an article in the local newspaper included information from the child's records and also the child's name. In part, the article was based upon information available to the general public from the pleadings in a court proceeding. The article also included personally identifiable information from the child's education record that was related to the reporter by the district administrator. This is information contained in the child's education record. The district did not have consent from the parent to make this disclosure of personally identifiable information from the student's record, and none of the statutory exceptions to the consent requirement permit disclosure without parental consent. Information essentially the same as that disclosed by the district administrator was available to the general public through the court proceeding. Nevertheless, none of the exceptions to the consent requirement permit disclosure based on this fact. There is a violation with regard to issue #2.

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DIRECTIVES:

The Wisconsin Heights School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district does not improperly disclose personally identifiable information from a student's education record.

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
6/2/99
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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