IDEA Complaint Decision 99-024

On March 25, 1999 (letters dated March 23 and 25, 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. During this investigation, department staff reviewed relevant education records of the child and documents submitted by the district in response to the complaint. Department staff spoke by telephone with the complainant.

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ISSUE #1:

Did the district fail to follow proper procedures when the child's individualized education program (IEP) was revised on January 6, 1999, to provide that the child could only attend school for half days?

ISSUE #2:

Did the district fail to provide the child with a free appropriate public education (FAPE) by only allowing him to attend school for half days as of January 6, 1999, which constituted an improper change in placement?

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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(4) Review and revision. (a) The individualized education program team shall do all of the following:

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2. Revise the individualized education program as appropriate * * *

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Section 115.78, Wisconsin Statutes
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. Each team shall consist of all of the following:

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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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Section 115.792, Wisconsin Statutes
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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Wisconsin Administrative Code, Section PI 8.01
School district standards.

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and hours of instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,050 hours of direct pupil instruction in grades 1 through 6. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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34 CFR 300.504 Prior notice; parent consent.

(a) Notice. Written notice that meets the requirements under s. 300.505 must be given to the parents of a child with a disability a reasonable time before the public agency --
(1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child * * *.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

State Individuals with Disabilities Education Act (IDEA) Complaint No. 94-057, Superior School District, March 17, 1995.

A school district is required to provide a FAPE to each resident child with EEN. In order to provide a FAPE, a district must, in part, provide special education and related services that meet the statutes and rules enforced by the department. One of the rules enforced by the department requires a district to schedule annually at least 1,137 hours of instruction for children in grades 7 through 12. The rule states that the instructional hours are computed as the period from the start to the close of each pupil's daily instructional schedule, and that the lunch period is not included in this computation. A district may schedule fewer hours of instruction for a child with EEN only if the participants in the meeting to develop the child's IEP determine that the child's individual needs dictate that fewer hours be scheduled. Such a determination must be reflected in the child's IEP. Similarly, deviations from the normal school day, such as instruction during the lunch period, must be reflected in the child's IEP and must be made based upon the child's individual needs.

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FINDINGS OF FACT:

This complaint concerns a child with a disability who is a fifth grade student at Burbank School. During the 1998-99 school year, the school staff implemented several behavioral intervention techniques to address the child's disruptive behavior.

On January 6, 1999, the school principal called the child's mother and invited her to a meeting to discuss the child's behavioral problems at school. The child's mother informed the principal that she was ill and would be unable to attend the meeting. The principal then asked the mother if she would agree to half-day attendance for the child as a strategy for improving the child's behavior. The mother agreed.

An IEP team meeting was not held on January 6, 1999. At the request of the principal, the child's learning disabilities (LD) teacher prepared a new cover sheet for the child's 1998-99 IEP that indicated that an IEP team meeting was held on January 6, 1999, to review or revise the IEP. The cover page stated that the IEP team participants were the child's mother, the school principal, the regular education teacher, and the LD teacher. The section for documenting three efforts to involve the parents was filled in to indicate that a phone call was made to the mother on January 6, 1999, and that the result was "half days." On January 16, 1999, the IEP cover page was corrected to state that the IEP team participants were the child's mother and the school principal, and "half days" was changed to "[the child] will be on half days until behavior improves." The only change made to the child's 1998-99 IEP was the addition of this cover sheet, which resulted in the scheduling of fewer than the minimum annual hours of instruction mandated by state regulation. The district did not send the parent a notice concerning this change to the IEP or a copy of the revised IEP.

On March 24, 1999, during a telephone conversation with the mother, the district agreed to allow the child to resume full-day attendance at Burbank school. The child resumed full-day attendance on March 30, 1999.

CONCLUSION:

A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a district must take when it changes the provision of special education to a child. A change in a child's IEP must be made at an IEP team meeting. Whenever a district proposes to change a child's IEP and the provision of FAPE, it must send the parents notice of its intent a reasonable amount of time before the action is taken.

The district revised the child's 1998-99 IEP on January 6, 1999, without holding an IEP team meeting. The district did not provide proper notice to the child's parent prior to changing the provision of special education services in the child's IEP. There is a violation with regard to issue #1.

State law requires a district to schedule and hold annually at least 1,050 hours of instruction for each pupil in grades 1 through 6. A district may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP.

On January 6, 1999, the district revised the child's IEP to provide fewer than the minimum annual hours of instruction to the child. The decision to revise the child's IEP to provide fewer than the minimum annual hours of instruction to the child was not made by an IEP team. An IEP team did not meet and determine that the child's needs dictated fewer than the minimum annual hours of instruction required by state regulation. There is a violation with regard to issue #2.

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ISSUE #3:

Did the district fail to provide, upon request, a copy of the child's IEP developed on March 10, 1999, to the parent's advocate, who was a member of the IEP team?

APPLICABLE STATUTES AND RULES:

Section 115.787, Wisconsin Statutes
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 * * *.

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Section 118.125, Wis. Statutes
Pupil records.

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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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(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 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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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 laws 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 March 3, 1999, the child's mother 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 prior to March 10, 1999. An IEP team meeting was held for the child on March 10, 1999. The child's mother did not attend the meeting. The parent's advocate attended the IEP team meeting by invitation of the child's mother. At the meeting, the IEP team participants, including the advocate, were provided with a copy of the child's January 6, 1999, IEP. The IEP team did not complete its work at the March 10 meeting. Therefore, the IEP team was scheduled to reconvene on April 12, 1999.

At the conclusion of the March 10 IEP team meeting, the parent's advocate requested that the district provide him with a copy of the incomplete IEP that was being developed at the meeting. The district did not provide him with a copy. The advocate was provided with a copy of the new IEP at the April 12 IEP team meeting, which he attended with the child's mother.

CONCLUSION:

A school district must provide a copy of a child's IEP to the child's parents with the notice of placement. A district must allow a parent representative access to records at parent request but is not required to give copies of records to parent representatives. No provision in special education statutes and regulations specifically requires a district to provide all IEP team participants with a copy of the child's IEP at the conclusion of an IEP team meeting.

Here, the parent signed a written consent form requesting the district provide copies of the child's records, including IEPs, to the parent's advocate upon request. The district provided the parent's advocate with access to the child's IEP at the March 10, 1999, IEP team meeting. The district did not provide the advocate, upon request, with a copy of the incomplete IEP at the end of the meeting. The district provided the advocate with a copy of the new IEP at the reconvened IEP team meeting on April 12, 1999. There is no violation with regard to issue #3.

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DIRECTIVE:

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

  1. all revisions of the child's IEP or the IEP of any child with a disability are made by an IEP team at an IEP team meeting (issue #1); and
  2. whenever the district proposes to change the provision of FAPE and/or the IEP of the child or any child with a disability, it send the parents notice of its intent a reasonable amount of time before the action is taken (issue #1); and
  3. a decision to provide the child or any child with a disability with fewer than the annual minimum hours of instruction required by state law is based upon the child's needs and is made by an IEP team at an IEP team meeting (issue #2); and
  4. an IEP team meeting is held for the purpose of determining whether the child needs additional education services to compensate for the period from January 6 to March 30, 1999 when he received half days of instruction. (issue #2)

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after the department has approved it.

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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
5/24/99
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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