IDEA Complaint Decision 99-030

On May 5, 1999 (letter dated April 23, 1999) a complaint was filed with the Department of Public Instruction by XXXXX against the Menasha 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 materials provided by the complainant and the district and educational records of the youth. In addition, department staff telephonically interviewed the complainant, special education director, the principal, the vice principal, guidance counselor, and the child's teachers in the following subject areas: art, English, history, pre-algebra, physical education, technical education, and science.

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ISSUE #1:

Did the district fail to identify the child as a child with a disability during the 1998-99 school year?

ISSUE #2:

Did the district improperly discipline the child during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

PI 3, Wisconsin Administrative Code
Definitions.

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(44) "Teacher" means a licensed professional school employe whose work includes the exercise of any educational function for compensation including instructing pupils or administering, directing, or supervising any educational activity.

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Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(3) "Child" means any person who is at least 3 years old but not yet 22 years old and who has not graduated from high school.

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:
1. Cognitive disabilities.
2. Hearing impairments.
3. Speech or language impairments.
4. Visual impairments.
5. Emotional disturbance.
6. Orthopedic impairments.
7. Autism.
8. Traumatic brain injury.
9. Other health impairments.
10. Learning disabilities.

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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:
(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age.

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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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(f) Establishes written policies and procedures for implementing this subchapter and applicable federal law.

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(h) Regularly publicizes information regarding its special education procedures and services.

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Section 115.777, Wisconsin Statutes
Special education referrals.

(1) (a) A physician, nurse, psychologist, social worker or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability shall refer the child to the local educational agency.

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(b) A person who is required to be licensed under s. 115.28 (7), who is employed by a local educational agency and who reasonably believes a child has a disability, shall refer the child to the local educational agency.

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(3) A local educational agency shall do all of the following:

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(c) Provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency's referral procedures.
(d) At least annually, inform parents and persons required to make referrals under sub. (1)(a) about the agency's referral and evaluation procedures.

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

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(1m) 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:
(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.

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34 CFR 300. 128 Identification, location, and evaluation of children with disabilities.

(a) General requirement.. Each State plan must include in detail the policies and procedures that the State will undertake, or has undertaken, to ensure that--
(1) All children with disabilities, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated; and

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34 CFR 300.561 Notice to parents.

(a) The SEA shall give notice that is adequate to fully inform parents about the requirements of Sec. 300.128, including--
(1) A description of the extent that the notice is given in the native languages of the various population groups in the State;
(2) A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
(3) A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and
(4) A description of all of the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act of 1974 and implementing regulations in part 99 of this title.
(b) Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of the activity.

Individuals with Disabilities Education Act Amendments of 1997
Section 615. Procedural Safeguards.

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(k) (8) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES--
(A) IN GENERAL- A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency * * * may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(B) BASIS OF KNOWLEDGE- A local educational agency shall be deemed to have knowledge that a child is a child with a disability if--
(i) the parent of the child has expressed concern in writing * * * to personnel of the appropriate educational agency that the child is in need of special education and related services;
(ii) the behavior or performance of the child demonstrates the need for such services;
(iii) the parent of the child has requested an evaluation of the child pursuant to section 614; or
(iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

IDEA, Part B — Attachment I — Analysis of Comments and Changes (p. 12629)

"…a public agency will not be considered to have a basis of knowledge under paragraph (b) of this section merely because a child receives services under some other program designed to provide compensatory or remedial services.…"

Department of Public Instruction, Policies and Procedures: Individuals with Disabilities Education Act, Section VIII. Confidentiality

It is the policy of the State of Wisconsin that all pupil records collected, maintained, or used by a public school agency shall be confidential. Bulletin 98.02, "Pupil Records of Children with Exceptional Educational Needs" addresses the most frequently asked questions around pupil records.

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Notices

Prior to any major identification, location, or evaluation activity, parents shall be notified through public media of such activities and their rights regarding the confidentiality of and evaluation of children with disabilities. This notice must be written in language understandable to the general public and also in language understandable to non-English speaking parents.

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The notice must include a description of the children on whom personally-identifiable information is obtained, the types of information sought, the methods used in obtaining the information, and the uses made of the information. The notice must also include a summary of the confidentiality policies adopted by the agency on the storage, disclosure to third parties, retention, destruction, use of records including the location where copies of the agency's written policies may be obtained upon request, and a description of the rights of parents regarding this information under 34 CFR 99, Privacy Rights of Parents and Students (FERPA).

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DPI Information Update Bulletin 98.02 (January 1998), Question 21

21. What are the public notice requirements relating to pupil records and [special education?

At least annually and before any major child-find (screening) activity, each school district must notify parents of their rights with regard to pupil records as part of a special education screening notice. The notice must be given in the native language of the various population groups in the school district and may be given through such means as public announcements, written notices, or paid advertisements. The notice must include -

  • a statement of the school district's duty to identify, locate, and evaluate all resident children with [disabilities], regardless of the severity of their disability.
  • the extent to which the notice is given in the native languages of the various population groups in the district.
  • a description of the children on whom personally identifiable information is maintained, the type of information sought through child find activities, the methods the school district intends to use to gather the information (including the sources from whom information is gathered), and the uses to be made of the information.
  • a summary of the policies and procedures the district follows regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information.
  • a description of all the rights of parents and children regarding pupil records, including their rights under state and federal law, including the Family Educational Rights and Privacy Act (FERPA).
  • the educational opportunities available in the community for children with [disabilities].

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FINDINGS OF FACT:

General Child Find Activities

During the fall of the 1998-99 school year, the district mailed to residents of the Menasha Joint School District a child find notice. The notice did not: (1) describe the district's referral and evaluation procedures, (2) include a statement of the school district's duty to identify, locate, and evaluate all resident children with disabilities, (3) include the extent to which the notice is given in the native languages of the various population groups in the district, (4) describe the children on whom personally identifiable information is maintained, the type of information sought through child find activities, the methods the school district intends to use to gather the information, and the uses to be made of the information, (5) summarize the policies and procedures the district follows regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information, (6) describe the rights of parents and children regarding pupil records, and (7) state the educational opportunities available in the community for children with disabilities. In January of 1998, the department issued Information Update Bulletin 98.02, a bulletin with a model Notice of Child Find Activity to assist LEAs in meeting the notice requirement.

Procedural requirements for special education, including the district's referral and evaluation procedures, are communicated to staff via the district's special education policy handbook. In addition, the district provided several inservice opportunities to instruct staff on the referral procedures during the 1998-99 school year. During the August 24, 1998, teacher inservice, district staff spoke with teachers about the referral and evaluation process, particularly focussing on changes to the procedures as a result of the newly reauthorized IDEA. Throughout the year, the special education director attended staff meetings at district schools and instructed staff regarding the special education process, including referral and evaluation procedures.

During the 1998-99 school year, Maplewood Middle School organized the teachers in each grade into two "houses." A special education teacher participated in each house. Each of the houses met daily for a short period of time to discuss students and the schedule. The houses met weekly for a longer period of time. The houses met bi-weekly with the principal, school social worker, and school psychologist. The meetings continued to informally train teachers in the identification of children with disabilities, in the referral process, and in the evaluation process.

Child-specific Facts

The child whose education is the subject of this investigation resides in the Menasha Joint School District. During the 1998-99 school year, he attended eighth grade at Maplewood Middle School.

During the 1993-94 school year, the child was evaluated for special education and found not to have a disability under IDEA. Since the 1993-94 school year, the district provided the child, via a Section 504 plan, accommodations within the regular classroom to address his Attention Deficit Hyperactivity Disorder (ADHD).

On September 10, 1998, the mother referred the child to be reevaluated under Section 504 because "[the student's] grades are below his ability." She requested an assistive technology (AT) evaluation as part of the student's 504 plan because she wanted the school district to provide devices to increase, maintain, or improve the functional capabilities of her child in the classroom. The social worker asked the mother if she wanted the child evaluated under IDEA. The mother indicated that she did not.

During the 1998-99 school year, the mother did not express concern in writing to personnel of the school district that the child was in need of special education and related services, and she did not request an IEP team evaluation of the child to determine eligibility under the IDEA.

During the first quarter of the 1998-99 school year, the child was enrolled in English, history, physical education, pre-algebra, science, art, and technical education. The child's teachers did not refer the child for an IEP team evaluation. The teachers, social worker, and vice-principal did not believe that the student required special education.

On October 13, 1998, the child threatened his art teacher with an Exacto knife. After art class, he went to his physical education class. The physical education teacher overheard the child describing the incident to other students in the class. In an interview with department staff, the physical education teacher stated he had not, in his eight years of teaching, heard any other exchange that disturbed him as greatly as this incident. He relayed the child's behavior and demeanor to the vice-principal, along with his concerns as a teacher. In addition, after the investigation regarding the art class incident concluded, the district suspended the child for five days for possession of a weapon beginning October 23, 1998.

On October 23, 1998, the superintendent of schools sent the parent and child a notice of an expulsion hearing. The notice cites three reasons for the expulsion hearing: repeated refusal or neglect to obey school rules, conduct endangering the health or safety of others, and conduct endangering the health or safety of a school employee.

The student returned to school on October 28, 1998, pending the expulsion hearing.

On November 4, 1998, the district held a meeting with three agenda items. Participants in the meeting were: the parent, regular education teachers, a special education teacher, the vice-principal, the school social worker, the principal, the school psychologist, a guidance counselor, a representative from the Gmeiner Clinic, a representative from the Early Intervention Program of Winnebago County Department of Social Services, and an occupational therapist.

First, the participants conducted a manifestation determination under Section 504. The members found that the student's behavior was a manifestation of his disability. The district later dismissed the expulsion proceeding.

Second, the participants discussed the educational placement of the student for the rest of the semester. District staff state that everyone participated in this discussion and decided that the child should be removed from his current placement and should attend the After Hours Program. The parent stated, during this investigation, that she did not agree to the change in placement, and that she did not feel that the district listened to her concerns. The child began attending the After Hours program on November 10, 1998, and attended the program for the duration of the first semester. The district did not provide the parent with a notice of change of placement that would meet IDEA requirements.

Third, the participants discussed evaluation and Section 504 plan development. During the meeting, the participants reviewed three categories of information. They reviewed the behavior and performance of the student during and after the art class incident on October 13, 1998. They discussed a psychological report from an evaluation conducted October 27, 1998, in which the psychologist did not see the student as a safety threat. They also reviewed the behavior and performance of the student prior to the art class incident. The vice-principal reported that the student was suspended four times during the 1997-98 school year. The school psychologist reported that the student can attend with structure and support, and he has good average abilities.

Before the art class incident, the staff had discussions about the student on a regular basis during their team meetings. The regular education and special education teachers summarized the staff discussions to the other participants of the November 4, 1998, meeting. The staff were concerned about the student's peer relationships. The student had very good oral communication skills but struggled with organizing his thoughts. The student was having a better year than in the past. They were concerned with the student's continued failure to take responsibility for his behavior. The student interacted well with adults but was antagonistic with peers. Proximity control, one-on-one attention and time outs were effective with him; he responded to tying materials to his interests.

The participants decided to refer the student to be evaluated to determine eligibility for special education and related services after reviewing information collected before and after the art class incident. The school social worker referred the student for an IEP team evaluation on November 6, 1998.

According to staff, prior to October 13, 1998, the student's overall behavior and performance did not demonstrate a need for special education and related services.

The district held an IEP team meeting on January 12, 1999, to determine initial eligibility for special education. The team found the student to be a student with an emotional disturbance and eligible for special education. The IEP team met again on January 25, 1999, to develop an IEP for the student. The district offered the student a placement beginning January 25, 1999.

CONCLUSION:

Issue #1

An LEA must identify, locate, and evaluate all children with disabilities who are in need of special education and related services and make available free appropriate public education to each student with a disability. In order to carry out this duty, an LEA is required to have child find procedures, some of which are directed at parents and non-LEA employees who are required to refer and some of which are directed toward licensed teachers working for the LEA.

LEAs are required to annually inform parents and non-LEA employed mandatory referrers of the LEA's referral and evaluation procedures. Here, the district mailed information about the district's responsibility to children with suspected disabilities and included names and numbers of people who could assist with the referral process to all residents of the school district, which included parents and mandatory reporters. However, the notice did not: (1) describe the district's referral and evaluation procedures, (2) include a statement of the school district's duty to identify, locate, and evaluate all resident children with disabilities, (3) include the extent to which the notice is given in the native languages of the various population groups in the district, (4) describe the children on whom personally identifiable information is maintained, the type of information sought through child find activities, the methods the school district intends to use to gather the information, and the uses to be made of the information, (5) summarize the policies and procedures the district follows regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information, (6) describe the rights of parents and children regarding pupil records, and (7) state the educational opportunities available in the community for children with disabilities. There is a violation in this regard to issue #1.

An LEA is required to provide information and inservice opportunities to its licensed employees to familiarize them with the LEA's referral procedures. The district's August 24, 1998, inservice, staff meetings throughout the school year, and Maplewood's house concept met the "inservice opportunities" requirement of special education law. Through these meetings and the handbook section on referrals, the district informed the teachers of the referral and evaluation process. Maplewood did an exemplary job of connecting regular education teachers with special education teachers and administrators. There is no violation in this regard to issue #1.

Teachers are required to refer a student for an evaluation if the teacher suspects the student may need special education because of a disability. Here, none of the teachers suspected the student to be a student with a disability under IDEA prior to October 13, 1998. Instead, they believed that his behavior and performance in class were appropriately addressed through interventions under a Section 504 plan. There is no violation in this regard to issue #1.

Issue #2

Wisconsin schools must be safe and disciplined. The provisions in special education law strike an appropriate balance between providing a safe and orderly learning environment for all students and safeguarding the rights of disabled students and their parents.

An LEA must follow special education law when disciplining a student not yet determined to be eligible for special education and related services if the LEA has knowledge that the child was a child with a disability before the behavior that triggered disciplinary action. If the LEA does not have knowledge that the child is a child with a disability, then the LEA can discipline the child without the protection of the IDEA.

An LEA is deemed to have knowledge that a child is a child with a disability if (1) the parent of the student has expressed concern in writing to personnel of the LEA that the student needs special education and related services or the parent requested an evaluation, (2) the behavior or performance of the student demonstrates the need for such services, or (3) the teacher of the student, or other LEA personnel of the LEA, has expressed concern about the behavior or performance of the child to the director of special education or to other LEA personnel responsible for the LEA's child find and referral system. An LEA is not deemed to have a basis of knowledge merely because the child receives services under some other program designed to provide compensatory or remedial services, in this case Section 504.

If the LEA has knowledge that the child is a child with a disability under IDEA, then it must ensure that child is evaluated to determine eligibility for special education and related services. The LEA must also notify the parents of their right to assert the protections of the IDEA. These rights include the right to request a due process hearing and provisions regarding the child's placement during the pendency of such proceedings.

In this case, the parent had not expressed concern in writing to the district regarding special education and related services; she did not request an evaluation under IDEA. Staff asked the mother whether she wanted an IDEA evaluation when she asked about assistive technology for her child, and she declined. Neither the teachers of the student nor other personnel of the LEA expressed concern about the behavior or performance of the child prior to the October 13, 1998, art class incident to the director of special education or to other LEA personnel responsible for the LEA's child find and referral system. The district worked closely with the mother and the student to develop a plan under Section 504 to address the child's educational needs. During the 1998-99 school year, the district evaluated the child's need for assistive technology under Section 504. District staff did not believe the child's behavior or performance before October 13, 1998, demonstrated a need for special education and related services.

The behavior that triggered disciplinary action occurred on October 13, 1998. The facts in this case do not demonstrate that the district had knowledge that the child was a child with a disability under IDEA before that behavior. Thus, the school district was not required to follow IDEA in disciplining the student. The complaint is not substantiated with regard to issue #2.

The department is not authorized to determine whether the district violated Section 504 of the Rehabilitation Act of 1973, which is enforced by the Office for Civil Rights, U.S. Department of Education.

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ISSUE #3:

Did the district administer the Depression Screening Test to the child without the parent's consent during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.782, Wisconsin Statutes
Evaluations.

(1) NOTICE; CONSENT. (a) The local educational agency shall notify the parents of the child, in accordance with s. 115.792, of any evaluation procedures the agency proposes to conduct, the qualifications of the individuals who will conduct the evaluation and their names, if known.

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(4) REEVALUATIONS. * * *
(b) The local education agency shall obtain informed consent from the child's parent before reevaluating a child with a disability,…

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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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(3) PROCEDURAL SAFEGUARDS NOTICE. * * *
(b) The local educational agency shall give to the parents of a child with a disability, upon the child's initial referral for evaluation, upon each notification of an individualized education program meeting and upon reevaluation of the child, a full explanation written so as to be easily understood by the general public, and in the native language of the child's parents unless it clearly is not feasible to do so, of the procedural safeguards available under this section and under applicable federal law relating to all of the following:

  1. Independent educational evaluation.
  2. Prior written notice.
  3. Parental consent.
  4. Access to educational records.
  5. Opportunity to present complaints.
  6. The child's placement during pendency of due process proceedings.
  7. Procedures for pupils who are subject to placement in interim alternative educational settings under 20 USC 1415(k).
  8. Requirements for the unilateral placement by parents of pupils in private schools at public expense.
  9. Mediation.
  10. Hearings under s. 115.80.
  11. Civil actions.
  12. Attorney fees.

34 CFR 300.500 Definitions of "consent," "evaluation," and "personally identifiable."

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(b) "Evaluation" means procedures used in accordance with ss. 300.530--300.534 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. The term means procedures used selectively with an individual child and does not include basic tests administered to or procedures used with all children in a school, grade, or class.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation is a child with an emotional disturbance. During the 1998-99 school year, he attended Maplewood Middle School.

Annually, the district conducts a depression screening program with all of the seventh and eighth grade students in the district. The district has conducted the screening for 12 years.

Parents were notified of the screening program through a flyer included in the February 1999 school newsletter that was mailed to all parents. The flyer reads:

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As part of the effort to focus on mental health awareness, Maplewood will be administering a depression screening for seventh and eighth grade students during the first week of February. Students will be asked to complete a survey dealing with their everyday feelings. The survey will be repeated in two to three weeks with students who score "at risk" to confirm scores from the initial screening.

The students who score "at risk" on both surveys will be individually interviewed by our pupil services staff. If survey scores and interview evaluations indicate the possibility of serious depression, parents will be contacted. Community mental health resources would then be discussed with parents and students for possible referral for diagnosis or appropriate therapy. It will be the parent's choice whether to pursue help through the mental health resources suggested.

All scores and results of the survey will be kept strictly confidential. No records will be attached to permanent files. Completed questionnaires will be destroyed when the screening process is finished.

While we encourage participation in the screening program for all students, we understand that some parents may have belief systems, which prevent them from feeling comfortable with their child's participation in this type of program. If you do not wish your son/daughter to participate in the screening program, please call 832-5784 or 832-5785.

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The mother did not notify the school to exclude her son from the screening program. The district screened eighth grade students on March 10, 1999. The student participated in the screening program.

CONCLUSION:

Written notice that meets the requirements in the law must be given to the parents of a child with a disability a reasonable time before the LEA evaluates a child. The law defines evaluation to mean procedures to determine whether a child has a disability, and the nature and extent of the special education and related services that the child needs. Evaluation does not include basic tests administered to or procedures used with all children in a school, grade, or class.

Here, the district administered the Depression Screening Test to all seventh and eighth graders. The test is not an evaluation requiring consent under special education law. There is no violation with regard to issue #3.

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ISSUE #4:

Did the district fail to follow proper procedures when the parent informed the district that she believed information in the child's records was inaccurate during the 1998-99 school year?

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, peace officers' records obtained under s. 48.396 (1m) and any other pupil records that are not progress records.

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(c) "Progress records" means those pupil records which include the pupil's grades, a statement of the courses the pupil has taken, the pupil's attendance record, the pupil's immunization records, any lead screening records required under s. 254.162 and records of the pupil's school extracurricular activities.

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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.

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34 CFR 99.22 What minimum requirements exist for the conduct of a hearing?

The hearing * * * must meet, at a minimum, the following requirements:
(a)The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.
(b)The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.
(c)The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.
(d)The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues * * * The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.
(e)The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.
(f)The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

34 CFR 300.567 Amendment of records at parent's request.

(a) A parent who believes that information in the education records collected, maintained, or used under this part is inaccurate or misleading or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the information.
(b) The agency shall decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.
(c) If the agency decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal, and advise the parent of the right to a hearing under s. 300.568.

34 CFR 300.568 Opportunity for a hearing.

The agency shall, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

34 CFR 300.569 Result of hearing.

(a) If, as a result of the hearing, the agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it shall amend the information accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it shall inform the parent of the right to place in the records it maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this section must--
(1) Be maintained by the agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and
(2) If the records of the child or the contested portion is disclosed by the agency to any party, the explanation must also be disclosed to the party.

34 CFR 300.570 Hearing procedures.

A hearing held under s. 300.568 must be conducted according to the procedures under s. 99.22 of this title.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

DPI Information Update Bulletin 98.02 (January 1998), Question 22

22. If a parent believes the information in pupil records is inaccurate, misleading or violates the privacy or other rights of the child, what action can the parent take?

If a parent believes the information in pupil records is inaccurate, misleading or violates the privacy or other rights of the child, the parent may request the school district to amend the information. The district must decide within a reasonable period of time whether to amend the information. If the district decides to refuse to amend the information, it must inform the parent of the refusal, and advise the parent of the right to a hearing under the regulations implementing the Family Educational Rights and Privacy Act (FERPA) of 1974. If, as a result of the hearing, the district decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must amend the information accordingly and inform the parent in writing. If the district decides that the information is not inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must inform the parent of the right to place in the records a statement commenting on the information or stating the reasons for disagreeing with the district's decision. The parent's statement must be maintained by the district as part of the child's pupil records as long as the contested information is maintained by the district. If the contested information is disclosed to any person, the parent's statement must also be disclosed to that person.

FINDINGS OF FACT:

The child whose education is the subject of this investigation is a child with an emotional disturbance. On January 12, 1999, the district determined he was eligible for special education and related services. During the 1998-99 school year, he attended Maplewood Middle School.

The mother believes that she asked the district to correct inaccuracies in the child's record via the following e-mail message to the principal (January 26, 1999):

[The principal]…I really do not believe [the child] should be in an ED room most of the day. I do not feel this is a positive solution… It was too bad that [a police school liaison officer] could not have gotten her message through to the group. She said she talked to [ ] and there was more to her request than what was reported. I have requested it in writing… She also does not feel the ED room is the right placement for [the student].

I am patiently waiting for the precise list of information that I requested several times. What I wanted was:

date............teacher..................precise incident information (not date — accusation)

I tried to get the information again yesterday in talking with [ ]. He said he would research and get me a complete list.

For example: the last entry
10-21-98..........possession of a weapon............5 day out-of-school suspension

Added to that should be — 99 day inappropriate school placement.

What I requested for each incident or remark using the last entry as an example was: What was the weapon? Where did he obtain a weapon? Who gave [the child] the weapon? What was the incident? What led up to the situation? Who was involved? Who investigated the situation?

That is the information I would like for each situation. Thank you. Perhaps I wasn't clear on the information I was requesting but I thought I was.

Thank you for mailing me a precise list.

The district did not understand this e-mail to be a request to amend records. The district interpreted this e-mail to be a request for information; the district compiled and sent to the mother a document that included the information she requested in the e-mail.

On February 25, 1999, the district held an IEP team meeting. Following the meeting, the mother stated to the director of special services that she felt there were inaccurate statements in the youth's disciplinary file.

On March 9, 1999, the director of special services sent the mother a letter that read:

I have spoken with [the district superintendent] regarding your concerns with what you feel are inaccurate statements in [the youth's] record. I have set up an appointment for you with [the district superintendent] and me at 4:15 PM on March 17, 1999 in [the district superintendent's] office at the Banta School Administrative Offices. You are welcome to bring someone else with you to the meeting. Please let me know as soon as possible if you cannot meet at this time. It would be helpful if you can identify specifically what inaccuracies you feel are present so that the district can appropriately respond to your concerns.

* * *

During the March 17, 1999, meeting, the mother did not identify specific portions of statements in the record as inaccurate. She believed that the records were, in general, misleading because the records focussed on her son's negative behavior and did not provide adequate information about the context in which the negative behavior occurred. Specifically, she objected to the records regarding the October 13, 1998, art class incident. She provided the district with a document of follow-up conversations she had with students, staff, and a police officer regarding her son's behavior on October 13, 1998.

As a result of the meeting, the district did not amend the records. The district did not inform the parent, in writing, of its decision not to amend the records.

The district did place a copy of the documentation provided by the mother on March 17, 1999, in the child's records. The special education director stated that the documentation provided by the mother would be provided to any person that appropriately requests the disciplinary records.

CONCLUSION:

If a parent believes the information in pupil records is inaccurate, misleading, or violates the privacy or other rights of the child, the parent may request the LEA to amend the information. During this first level of review, the LEA must decide within a reasonable period of time whether to amend the information. If the LEA decides to refuse to amend the information, it must inform the parent of the refusal, and advise the parent of the right to a hearing under the regulations implementing the Family Educational Rights and Privacy Act (FERPA) of 1974. A hearing, if requested, is the second level of district review. The LEA must conduct the hearing within a reasonable time period after receiving the request, must give the parent notice of the date, time, and place, reasonably in advance of the hearing, and must give the parent a full and fair opportunity to present evidence relevant to the issues. The LEA must make its decision, which must be based solely on the evidence presented at the hearing, and state the reasons for its decision in writing.

If, as a result of the hearing, the LEA decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must amend the information accordingly and inform the parent in writing. If the LEA decides that the information is not inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must inform the parent in writing of the right to place in the records a statement commenting on the information or stating the reasons for disagreeing with the LEA's decision. The parent's statement must be maintained by the LEA as part of the child's pupil records as long as the contested information is maintained by the LEA. If the contested information is disclosed to any person, the parent's statement must also be disclosed to that person.

The e-mail sent to Maplewood's principal on January 26, 1999, was not a request to amend records but rather a request for information. Special education law regarding records amendment does not apply.

The district first reviewed the request to amend records during the March 17, 1999, meeting. It did amend the information and did not inform the parent of the right to a hearing. The complaint is substantiated with regard to issue #4.

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DIRECTIVE:

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

  1. the district annually informs parents and non-LEA employed mandatory referrers of the LEA's referral and evaluation procedures with a notice that includes (1) a statement of the LEA's duty to identify, locate, and evaluate all resident children with disabilities, regardless of the severity of their disability; (2) the extent to which the notice is given in the native languages of the various population groups in the LEA; (3) a description of the children on whom personally identifiable information is maintained, the type of information sought through child find activities, the methods the LEA intends to use to gather the information (including the sources from whom information is gathered), and the uses to be made of the information; (4) a summary of the policies and procedures the LEA follows regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; (5) a description of all the rights of parents and children regarding pupil records, including their rights under state and federal law, including the Family Educational Rights and Privacy Act (FERPA); and (6) the educational opportunities available in the community for children with disabilities (issue #1); and
  2. when determining whether to amend a child's pupil records, the district informs the parent of its decision and the right to a hearing; during the hearing procedure, the district properly notifies the parent of the hearing and makes its decision, which must be based solely on the evidence presented at the hearing, and state the reasons for it, in writing (issue #4).

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
8/6/99
_______________________________________________
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