IDEA Complaint Decision 99-020

On March 15, 1999 (letter dated March 8, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Fond du Lac 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. During this investigation, department staff reviewed written material provided by the complainant and the district, including written records from the special education teacher, the principal, and the attendance officer. In addition, department staff interviewed complainant and the principal, the special education teacher, and the attendance officer.

First, the department will address issues 1 and 3, which relate to review and revision of IEPs and the provision of special education and related services to the youth without a current IEP in effect. Then, the department will address issue 2, which relates to provision of a copy of the IEP to the youth; issue 4, which relates to the provision of supplementary aids and services during the current school year; and issue 5, which relates to improper refusal of a parental request.

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ISSUE #1:

Did the district fail to review and, if necessary, revise the youth's IEP during the 1996-97, 1997-98, and 1998-99 school years?

ISSUE #3:

Did the district provide special education and related services to the youth without a current IEP in effect since January 1999?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76 (Effective May 6, 1998)
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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Wisconsin Statutes, Section 115.77 (Effective May 6, 1998)
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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Wisconsin Statutes, Section 115.78 (Effective May 6, 1998)
Individualized education program team; timeline.

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(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.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under s. 115.787.

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Wisconsin Statutes, Section 115.787 (Effective May 6, 1998)
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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(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.
2. Revise the individualized education program as appropriate to address all of the following:
a. Any lack of expected progress toward the annual goals and in the general curriculum.
b. The results of any reevaluation conducted under s. 115.782.
c. Information about the child provided to or by the child's parents, as described in s. 115.782.
d. The child's anticipated needs.
e. Other matters.

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Wisconsin Administrative Code, Section PI 11.01 (Repealed October 1, 1998)
Purpose.

(1) LEGISLATIVE INTENT. The legislature recognized that many children and youth, 3 to 21 years of age, have not experienced appropriate educational opportunities because comprehensive services were not available through all public schools, which were commensurate with their EEN. Subchapter V. ch. 115., Stats., was enacted to ensure the identification of such needs and the development of services for children to appropriately serve these needs. School districts shall provide children with EEN who have attained the age of 3 with a free appropriate public education in accordance with this chapter.

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Wisconsin Administrative Code, Section PI 11.02 (Repealed October 1, 1998)
Definitions.

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(20) "Free appropriate public education" or "FAPE" means special education and related services which:
(a) Are provided at public expense, under public supervision and direction, and without charge;
(b) Meet the statutes and rules enforced by the department; and,
(c) Are provided in conformity with a child's IEP.

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Wisconsin Administrative Code, Section PI 11.05 (Repealed October 1, 1998)
Individualized education program.

(1) APPOINTMENT OF STAFF. When an M-team report is approved under s. PI 11.04(5)(d) indicating that a child who is 3 years of age or older, a resident of the school district and who has not graduated from high school, is a child with EEN, a board shall appoint staff to develop an IEP for the child.

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(2) IEP MEETING. (a) The board shall set a date for a meeting to discuss the special education program and related services needs of the child and to develop an IEP for the child.

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(5) REVIEW OF THE IEP. (a) At least annually a board shall review the IEP of each child with EEN who is a resident of the district. Whenever a board conducts a review of a child's IEP or wants to change a child's IEP it shall comply with this section.

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(6) PURPOSE OF AN IEP. (a) A board shall provide special education and related services to a child consistent with the child's current IEP. A board may not provide special education and related services to a child unless the child has a current IEP.

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

(a) At the beginning of each school year, each public agency shall have in effect an IEP for every child with a disability who is receiving special education from that agency.
(b) An IEP program must--
(1) Be in effect before special education and related services are provided to a child;

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FINDINGS OF FACT:

The youth whose education is the subject of this complaint moved into the Fond du Lac School District in 1988. He was identified as a child with a learning disability. Multi-disciplinary team (M-team) reevaluations determined the youth's continued eligibility for special education and related services through the current school year.

A meeting was held on January 3, 1996, to develop an IEP for the youth. The youth's mother, a representative from the school district, and a special education teacher attended the meeting. The district implemented the IEP on January 3, 1996. The IEP remained current through January 2, 1997. Between January 3, 1997, and May 13, 1997, the district did not have a current IEP in effect for the child.

The district conducted a meeting on May 13, 1997, to review the youth's IEP. The principal, acting as district representative, a special education teacher, and the parent attended the meeting. The district implemented the IEP on May 13, 1997. The IEP remained current through May 12, 1998. Between May 12, 1998, and December 10, 1998, the district did not have a current IEP in effect for the child.

On December 10, 1998, an IEP team met to review and revise the youth's IEP. The parent, the student, the principal, a regular education teacher, a special education teacher, a counselor, and a school district administrator, acting as the school district representative, attended the meeting. The district implemented the IEP on December 10, 1998. The IEP remains current through December 9, 1999. Since December 10, 1998, the youth attended seven days of school and was provided with special education and related services.

On February 9, 1999, the youth withdrew from school; he had turned eighteen on September 20, 1998.

CONCLUSION:

The law requires the local educational agency (LEA) to provide a free appropriate public education (FAPE) to each child with a disability. An LEA provides FAPE, in part, by providing special education and related services consistent with an individualized education program (IEP). LEAs are required to annually review and revise, if necessary, IEPs of children with disabilities.

During the 1996-97, 1997-98, and 1998-99 school years, the district failed to annually review and revise, if necessary, the youth's IEP. The district reviewed and revised the child's IEP on January 2, 1996. The district did not review the child's IEP until May 13, 1997. The district did not review the child's IEP again until December 10, 1998. There is a violation in this regard to issue #1.

Since December 10, 1998, the district has implemented a current IEP. Thus, for the seven days the youth attended school, the district provided special education and related services with a current IEP in effect. There is no violation in regard to issue #3.

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ISSUE #2:

Did the district fail to provide the youth a copy of his January 1999 IEP?

APPLICABLE STATUTES AND RULES:

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

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(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.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under s. 115.787.

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Wisconsin Statutes, Section 115.787
Individualized education programs.

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(3) DEVELOPMENT.

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(e) The local educational agency shall give a copy of the child's individualized education program to the child's parents with the notice of placement under s. 115.792 (2).

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Wisconsin Statutes, Section 115.792
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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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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(1) NOTICE. The notice required under sub. (1)(b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78 (4).

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Wisconsin Statutes, Section 115.807
Transfer of parental rights at age of majority.

When a child with a disability, other than a child with a disability who has been determined to be incompetent under ch. 880, reaches the age of 18, all of the following apply:
(1) The local educational agency shall provide any notice required by this subchapter to both the individual and the individual's parents.
(2) All other rights accorded to the individual's parents under this subchapter transfer to the individual.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint 98-052, 04/23/99

Whenever a district proposes to initiate or change the provision of FAPE to a child, including implementing a revised IEP, the district must send the child's parent a prior notice that meets the requirements in the law. The notice must include a description of the action proposed by the district, and a description all factors that are relevant to the action. Therefore, when a district revises a child's IEP, the district must send the child's parents a notice that includes a copy of the child's IEP before implementing the IEP.

FINDINGS OF FACT:

The youth whose education is the subject of this complaint moved into the Fond du Lac School District in 1988. He was identified as a child with a learning disability. M-team reevaluations determined that the youth continued to be eligible for special education and related services through the current year. The youth attained the age of 18 on September 20, 1998.

On December 10, 1998, an IEP team met to review and revise the youth's IEP. The district implemented the revised IEP on December 10, 1998. The IEP remains current through December 9, 1999.

In his complaint letter, the youth states, "Supposedly a new IEP was developed but not finished at a January 7, 1999, meeting that my mother and I attended. We have not yet seen a copy, even though we requested one." No IEP team meeting was held after December 10, 1998; the IEP has not been revised since then. The IEP to which the complainant refers in his letter is the IEP developed on December 10, 1998.

The practice of the district is to send the completed written IEPs to the Central Administrative office. The pupil services director's assistant then forwards a copy along with a Notice of Placement to the parent and, if the student is over 18, to the student. The practice of the pupil services director's assistant is to place the Notice of Placement, along with the IEP, in an envelope and mail it. Simultaneously, the pupil services director's assistant places a copy of the Notice of Placement and the IEP in the youth's file at the Central Office.

The Notice of Placement is dated December 10, 1998, and indicates that a copy of the IEP was enclosed or attached. A copy of the Notice of Placement and a copy of the youth's IEP is in a folder at the Central Administrative office.

The youth and the youth's parent state that neither the youth nor the parent received a copy of the Notice of Placement or a copy of the youth's IEP.

CONCLUSION:

Whenever a district proposes to initiate or change the provision of FAPE to a youth, including implementing a revised IEP, the district must send the youth's parents a prior notice that meets the requirements in the law. The notice must include a description of the action proposed by the district, and a description of all factors that are relevant to the action. Therefore, when a district revises a youth's IEP, the district must send the parents a notice that includes a copy of the youth's IEP before implementing the IEP. All parental rights transfer to a youth upon her/his 18th birthday. After a youth attains 18 years of age, both the parent and the youth receive required notice of district action.

On December 10, 1998, the youth's IEP team revised his IEP. The district has in its central office folder a copy of the youth's IEP and Notice of Placement; according to the district's procedures, a copy of the youth's IEP and Notice of Placement would have been mailed to the youth at the same time a copy of these documents was placed in the central office folder. The department is unable to determine that the district failed to provide a copy of the IEP to the youth. The complaint is not substantiated with regard to issue #2.

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ISSUE #4:

Did the district fail to provide supplementary aids and services for the youth to be involved and progress in the general curriculum during the current school year?

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.

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(16) "Supplementary aids and services" means aids, services and other supports that are provided in regular education classes or other education-related settings to enable a child with a disability to be educated with nondisabled children to the maximum extent appropriate.

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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.

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(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.

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Wisconsin Statutes, Section 115.79
Educational placements.

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

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

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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.

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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.

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Wisconsin Statutes, Section 118.16
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.

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(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.

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(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.

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(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.

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(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.

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(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).

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Wisconsin Statutes, Section 118.162
Truancy committee and plan.

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(4) Not later than September 1, 1989, each school board shall adopt a truancy plan which shall include all of the following:
(a) Procedures to be followed for notifying the parents or guardians of the unexcused absences of habitual truants under s. 118.6(2)(cr) and for meeting and conferring with such parents or guardians.
(b) Plans and procedures for identifying truant children of all ages and returning them to school, including the identity of school personnel to whom a truant child shall be returned.
(c) Methods to increase and maintain public awareness of and involvement in responding to truancy within the school district.
(d) The immediate response to be made by school personnel when a truant child is returned to school.
(e) The types of truancy cases to be referred to the district attorney for the filing of information under s. 938.24 or prosecution under s. 118.15(5) and the time periods within which the district attorney will respond to and take action on the referrals.
(f) Plans and procedures to coordinate the responses to the problems of habitual truants, as defined under s. 118.16(1)(a), with public and private social services agencies.
(g) Methods to involve the truant child's parent or guardian in dealing with and solving the child's truancy problem.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 91-019, 1/29/92

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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.

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Department of Public Instruction, IDEA Complaint Decision 99-005, 4/23/99

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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.

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FINDINGS OF FACT:

In his complaint letter to the department, the youth stated:

One on one reading help was offered to me for the beginning of the second semester, starting in January. After 2 weeks, I felt the method of just reading and taking notes was not helping me. By the way I was treated, I also felt that no one really wanted me at school. I told [the principal] of my feelings at that time, and said I would no longer be coming to school.

The district did not have a current IEP in effect for the youth during the 1998-99 school year until December 10, 1998. The December 10, 1998, IEP requires the district to provide supplementary aids and services in the form of monitoring sheets for his regular education classes, daily contact with the special education supervising teacher, and conferences among the teachers, student, and parent. When the youth attended school, the district provided these services.

During the 1998-99 school year, the youth attended less than 14 full days of school. He was truant for all or part of 85 days; he was absent with an excuse for 4 days. The parent states that she would drop the youth off at school every day; the youth would enter the building and then leave by another exit.

The school district's truancy policy states:

Compulsory School attendance: The school attendance laws as specified by Wisconsin Statutes, 118.15, 118.16, and 115.82 shall be enforced by the School District. The parent or guardian who does not comply with the law will be contacted by the school district and informed of responsibilities, and appropriate legal action will be taken. Students who refuse to comply shall be referred by the Supervisor of Attendance and Transportation to the juvenile court and/or the district attorney's office for appropriate action.

The district had been concerned about the youth's truancy during the 1997-98 school year. When school began in August 1998, it continued the discussions and work begun during the previous year.

During the 1997-98 school year, the district had worked with the parent and the youth in the following ways:

  1. The school attendance officer called the parent on numerous occasions to inform the parent of the youth's truancy.
  2. Shortly before February 18, 1998, the youth's LD teacher sent the following memo to all of the child's teachers:

    [The youth's mother] called with concerns that [the youth] may be on the verge of dropping out of school or just being truant until his eighteenth birthday (9/20/98). [The mother] said that she is very concerned with his sudden change in attendance. She and I are both struggling on what may be done to re-involve [the youth] in his education. There has been an IEP meeting scheduled for 3:45 2/18/98 in my room [ ]. This is not a meeting to rewrite all of [the youth's] goals but more to see if something needs to be added or subtracted from his current IEP. Something that may help [the youth].

    It would be nice if you could attend but I know that this is short notice. If you can not (sic) attend, please send a written statement as to what [the youth] can and can not (sic) do in your class and maybe some strategies that you use for [the youth] that are working.

    [The youth] will be at this meeting and I am hopeful that whatever is happening with him at this time can be resolved.

  3. An M-team met on February 18, 1998, to review and revise the youth's IEP. All members of the M-team, including the youth's mother, felt that the critical issue to address was the youth's truancy. The team discussed various strategies to encourage the youth to attend school. Some of the goals were written into the IEP; some of the goals were less formal and agreed-upon strategies among the teachers (i.e., agreeing to pair the youth with another youth to work on assignments).
  4. On March 25, 1998, the district held a meeting with the youth to discuss his truancy. Minutes from the meeting note, "…realized if he wants to achieve his goals, must attend school and do the job."
  5. On May 4, 1998, the dean of students met with the guidance counselor, the youth, and the youth's parent. Minutes from the conference read:

    Reason for conference:

    Truancy

    School information:
    IEP due week of May 11th–must find out who will do it–[the youth] will attend 1st and 6th hour tech courses–will work on correspondence course or a reading computer program during other hours.

    Home information:
    Seeing counselor…--doesn't know why he isn't coming to school

    Cooperative plans for future:
    [The youth] will talk with mom about summer school and extra semester doing a correspondence course to help his reading level and possibly work on a reading computer program with an LD teacher

During the 1998-99 school year, the district continued working with the parent and youth to address the issue of truancy:

1. Upon her arrival, the new LD teacher scheduled a meeting with the youth and the youth's parent to schedule IEP team meeting dates. The LD teacher met with the principal, the youth's parent, and the youth on September 3, 1998. Minutes from the meeting read:

Reason for conference:
Almost 18–truancies. Not cooperative with coming to school. Needs IEP.

School information:
Truant: unmotivated
Loves "Explorers"

Home information:
[Mother] cooperative. Wants [the youth] in school.
Motivated with Explorers

Cooperative plans for the future:
Wants to go into police training
Needs to be here in order to get diploma

2. On October 9, 1998, the school district sent the following note to the student, who turned 18 on September 20, 1998:

Dear [youth]:

Concern has been raised by your teachers due to your present attendance record at Goodrich High School. You have been absent 21 out of 35 days during this quarter.

The Board of Education requires a minimum of 90% attendance. Attendance is the key to your success and a good indication for future employers. We are concerned and interested in good attendance habits.

This letter is being sent to be sure you are aware of your present attendance status with the hope that you will deal with this before further action is necessary.

If you have questions, please feel free to call your counselor at…

Sincerely,
/s/
…, Assistant Principal
…, Assistant Principal
…, Dean of Students
…, Dean of Students

The youth attained the age of 18 on September 20, 1998. The district's first quarter covered September 20, 1998, and ended on October 23, 1998.

On February 9, 1999, the youth dropped out of school. Between December 10, 1998, and February 9, 1999, the youth attended school 7 days out of the 35 days school was in session.

The district did not refer the youth to the juvenile court and/or the district attorney.

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, including supplementary aids and services to enable a child with a disability to be educated with nondisabled children to the maximum extent appropriate.

During the current school year, the district did not have a current IEP in effect for the youth until December 10, 1998. Therefore, between August 21, 1998, and December 10, 1998, on the days when the youth attended school, the district violated the law when it provided supplementary aids and services to the youth without a current IEP in effect. The complaint is substantiated in this regard to issue #4.

The other consideration with regard to this issue is the district's obligation to provide services to a truant youth. 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, including enforcing its truancy policy. Under the compulsory school attendance law, the obligation to enforce truancy provisions ends the term, quarter, or semester in which the youth attains the age of 18. The youth, however, continues to have a right to receive FAPE if he chooses to reenroll in school until he either graduates or reaches the age of 22.

The Fond du Lac School District's truancy policy requires the district to refer students who refuse to comply with the state compulsory attendance law to the juvenile court and/or the district attorney's office for appropriate action. Here, the district did not refer the youth to the juvenile court and/or the district attorney.

The district failed to make available a FAPE to the youth during the first quarter of the 1998-99 school year when it did not enforce the district truancy policy. There is a violation in this regard to issue #4.

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ISSUE #5:

Did the district improperly refuse to include general equivalency diploma (GED) preparation and testing in the child's 1997-98 and 1998-99 school year IEPs?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 11.05 (Repealed October 1, 1998)
Individualized education program.

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(7) NOTICE AND HEARINGS. (a) Whenever a board refuses to initiate or change an IEP it shall send a written notice to the child's parent of its intent to refuse. The notice shall be sent within a reasonable period of time before the refusal to take action and shall meet the requirements under s. PI 11.09(1).

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Wisconsin Administrative Code, Section PI 11.09 (Repealed October 1, 1998)
Notice and consent.

(1) NOTICE. (a) A notice shall be written in language that is understandable to the general public and it shall be written in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

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(d) A notice shall contain all of the following:
1. A description of the action proposed or refused by the board, an explanation of why the board proposes or refuses to take the action, and a description of any options the board considered and the reasons why those options were rejected.
2. A description of each evaluation procedure, test, record, or report the board used as a basis for proposing or refusing to take an action.
3. A description of any other factor which is relevant to the board's proposing or refusing to take an action.

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Wisconsin Statutes, Section 115.792 (Effective May 6, 1998)
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. * * *
(2) NOTICE. The notice required under sub. (1)(b) shall…include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78(4).

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300 CFR 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,

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction IDEA Complaint 97-045, 03/19/98

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Whenever a school district proposes or refuses to initiate or change the M-team evaluation, identification, placement offer, or the provision of FAPE to a child, the district must send the child's parent notice of its proposal or refusal. The notice must include the options considered by the district and the reasons the options were rejected. If…[specific] services were considered and a school district is refusing to provide…[those] services, then the district must provide the parent with a notice, consistent with s. PI 11.09(1), Wis. Admin. Code, of its refusal to provide…[the] services, including the reason for its refusal. If the child's parent disagrees with the district's refusal to provide…[the] services, the parents may request mediation or a due process hearing to resolve the dispute.

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Department of Public Instruction, Exceptional Education/Pupil Services Information Update Bulletin 98.10, 1998

20. What is the LEA to do if the school staff on the IEP team agree but parents disagree with the school staff?

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Both state and federal law contain provisions under procedural safeguards on how to proceed whenever a parent does not agree with an IEP team's determination of a child's eligibility or continued eligibility for special education and related services, need for special education, IEP content, placement, or provision of FAPE [s. ch. 115, Wis. Stats., and IDEA 1997]. The LEA must provide prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation, placement, or provision of FAPE to a child [s. 115.792, Wis. Stats.].

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FINDINGS OF FACT:

The district held IEP team meetings on May 13, 1997, and December 10, 1998, to review and revise the youth's IEP. The parent, principal, and special education teacher attended the May 13, 1997, meeting. The parent, student, principal, counselor, regular education teacher, special education teacher, and school district administrator attended the December 10, 1998, meeting.

At the May 13, 1997, meeting, the team did not discuss the possibility of the youth pursuing a GED. The team discussed the possibility of the youth working toward his high school equivalency diploma (HSED) in lieu of a high school diploma. The team decided that the HSED program was not well suited to the youth. District staff recollect that the parent agreed with this decision.

During the December 10, 1998, meeting, the team discussed the possibility of the youth working toward his GED. The team looked at the youth's reading scores and discussed the youth's success in a GED program with low reading scores. The team decided to focus instruction on improving the youth's reading skills instead of working on his GED. The mother states that she didn't feel comfortable with the decision to focus on the youth's reading skills and not pursuing the GED. She believes that she communicated her discomfort to the district on various occasions. District staff state they were not aware that the team's decision to focus on reading instruction was a refusal of the mother's wishes regarding the GED.

CONCLUSION:

Decisions regarding the evaluation, identification, placement offer, or the provision of FAPE to children with disabilities should be by consensus of the IEP team. If consensus cannot be reached, the district has an obligation to make a decision and provide notice to the parents regarding its decision. The parent then has the right to pursue a due process hearing or mediation for dispute resolution of substantive issues.

Whenever a school district refuses to change the provision of FAPE to a child, the district must send the child's parent notice of its refusal.

Since the IEP team did not discuss the GED during the May 13, 1997, meeting, the district clearly did not refuse services. It is unclear whether the parents and district reached consensus regarding the focus of the youth's IEP on reading skills rather than on the GED or whether the district refused the parent's and youth's request to include GED preparation in the youth's IEP during the December 10, 1998, IEP team meeting. The department is unable to determine that the district improperly refused a request to include GED preparation and testing in the child's 1998-99 school year IEPs. Thus, the complaint is not substantiated with regard to issue #5.

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DIRECTIVE:

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

  1. the district annually reviews and revises, if necessary, IEPs of children with disabilities (issue #1); and
  2. the district provides a FAPE to all children with disabilities by enforcing the district's truancy policy (issue #4); and
  3. the district hold an IEP team meeting to determine whether additional special education and related services are necessary to provide FAPE to the youth.

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/SJP
5/14/99
_______________________________________________
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