IDEA Complaint Decision 99-032

On April 28, 1999, by letter of the same date, a complaint was filed with the Department of Public Instruction by XXXXX against the Whitnall School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff reviewed correspondence and materials from the district's legal counsel and the director of pupil services. Department staff also had discussions with the parent and the director of pupil services.

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ISSUE:

In the spring of 1999, did the district improperly deny a parent's request for an individualized education program (IEP) team meeting to review and revise her daughter's IEP?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
Definitions.

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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 115.787
Individualized education programs.

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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.

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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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Wisconsin Statutes, Section 115.81
Children in child caring institutions.

(1) DEFINITIONS. In this section:

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(b) "Responsible local educational agency" means the local educational agency that was responsible for providing a free, appropriate public education to the child before the placement of the child in a child caring institution * * *.

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(3) REFERRAL. (a) Whenever a county department recommends to a court that a child be placed in a child caring institution or whenever a state agency anticipates placing a child in a child caring institution, the county department or state agency shall notify the responsible local educational agency.
(b) For each child identified in a notice under par. (a), the responsible local educational agency shall do all of the following:
1. If the child is a child with a disability, as soon as reasonably possible and after consulting with a county department or a state agency, as appropriate, appoint an individualized education program team to review and revise, if necessary, the child's individualized education program and develop an educational placement offer.

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(4) RESPONSIBILITY FOR EDUCATIONAL PLACEMENT. Whenever the responsible local educational agency offers an educational placement in a child caring institution under sub. (3) (b) 1. or 2. b., all of the following apply:
(a) The responsible local educational agency shall do all of the following:
1. Ensure that the child receives a free appropriate public education.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix C, Question 11

11. Who can initiate IEP meetings?

IEP meetings are initiated and conducted at the discretion of the public agency. However, if the parents of a child with a disability believe that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it would be appropriate for the parents to request an IEP meeting. The public agency should grant any reasonable request for such a meeting.

FINDINGS OF FACT:

The student whose education is the subject of this complaint is 17 years old and a junior in high school in the Whitnall School District. She was originally evaluated and placed in special education in Whitnall in June 1996. During the 1998-99 school year, the student was enrolled in a residential child caring institution (CCI) in Milwaukee. The student's enrollment in this facility was through a court-ordered placement for the period beginning August 27, 1998, and ending April 30, 1999. Prior to her CCI placement, the student resided within and attended the Whitnall School District.

The parent alleges that in February 1999, she requested an IEP meeting with the district to discuss her daughter's transition from the CCI's educational program to the Whitnall School District's program. The parent further alleges that the district denied the IEP meeting on the grounds that her daughter was not a resident of the Whitnall School District, because she was attending a residential facility located in Milwaukee. The district indicated that the parent did not make a request for an IEP team meeting at this time. There is no written documentation that the parent made a request for an IEP meeting in February 1999. In February 1999, the parent contacted the district and requested that her daughter's high school special education teacher be released to attend a staff meeting at the CCI. This was not an IEP team meeting. The teacher did not attend because of scheduling problems.

On March 23, 1999, the parent notified the school district by telephone that her daughter would be released from the CCI on April 30, 1999, and would return to the Whitnall School District for the remainder of the school year. In a subsequent conversation, the district's director of pupil services and the parent discussed the need for public school staff to consult with CCI staff. The parent and the district's director of pupil services met informally on April 19, 1999. This meeting was not an IEP team meeting. On April 20, 1999, the district sent the parent an invitation to an IEP team meeting scheduled for April 26, 1999, to review the child's IEP and develop a placement. At the April 26 meeting, the district developed the student's IEP and placement for the period beginning May 3, 1999, and ending June 10, 1999. The parent and her daughter attended the April 26, 1999, IEP meeting. On April 26, 1999, the district sent the parent a notice of placement for the remainder of the 1998-99 school year. On May 3, 1999, the district sent the parent an invitation to an IEP team meeting scheduled for June 3, 1999, to develop the student's IEP for the 1999-2000 school year. The parent and daughter attended the meeting. On June 4, 1999, the district sent the parent a notice of placement for the 1999-2000 school year.

CONCLUSION:

The law requires that each child with a disability, including a child in a CCI, receive FAPE. FAPE includes special education and related services consistent with an IEP. In the case of a child in a CCI, the law assigns this responsibility to the child's responsible local educational agency (LEA). The law requires an LEA to hold IEP team meetings to review the child's IEP periodically but at least annually. IEP meetings are initiated and conducted at the discretion of the LEA. However, if the parent of a child with a disability believes that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it is appropriate for the parents to request an IEP meeting. An LEA should respond to any reasonable request from a parent for a meeting to review and, if necessary, revise the child's IEP. If the LEA denies the parent request for an IEP meeting, the LEA must provide the parent with a notice of refusal.

The Whitnall School District was the student's responsible school district, and was responsible for ensuring that the student received FAPE during the 1998-99 school year. The complainant alleges that the district improperly denied a parent's request for an IEP team meeting to review and revise her daughter's IEP in the spring of 1999. There is conflicting evidence concerning whether the parent requested an IEP meeting at this time. There is not sufficient evidence to conclude that the parent made a request to the district for an IEP team meeting in February 1999. The district held an IEP team meeting on April 26, 1999, and developed the student's IEP and placement offer, prior to her release from the child caring institution on April 30, 1999, and her return to the district's program. There is not sufficient evidence to conclude that the district improperly denied the parent a request for an IEP team meeting to review and revise her daughter's IEP in the spring of 1999. The complaint is not substantiated.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
7/28/99
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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