IDEA Complaint Decision 99-034

On May 11, 1999 (letter dated May 10, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Columbus 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 the child's educational records and written materials from the complainant and district. In addition, department staff spoke with the director of special education at Cooperative Educational Service Agency (CESA) #5, the child's special education teacher, and a school district secretary.

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ISSUE #1:

Did the district fail to provide the complainant parent with proper notice before the evaluation of the child during the 1998-99 school year?

ISSUE #2:

Did the district fail to provide the complainant parent with prior written notice of IEP team meetings during the 1998-99 school year?

ISSUE #3:

Did the district fail to inform the complainant parent of special education rights during the 1998-99 school year as required by law?

APPLICABLE STATUTES AND RULES:

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

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(4) INFORMATION. At the beginning of any meeting to address the evaluation, individualized education program or placement of a child, the local educational agency staff shall inform the child's parents of their right to be provided with additional time under sub. (3) (d) and their right to a copy of the evaluation report under s. 115.782 (3) (b) or (c).

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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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Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED. (a) The local educational agency shall establish and maintain procedures to ensure all of the following:
1. That the parents of a child may * * * participate in meetings about the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education to the child * * *.

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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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(2) 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).
(3) PROCEDURAL SAFEGUARDS NOTICE.

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(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 300.345 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, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend * * *.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 89-047, February 16, 1990

Because the rights of one parent are not superior to the rights of the other, it is necessary for a district to provide notice to both parents when they are separated or divorced, with joint custody.

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While a district is not required to search out information about the marital status of a child's parents or determine the location of both of a child's parents, when it is informed of the status and/or location of the second parent an obligation to provide notice arises.

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Department of Public Instruction, Division for Learning Support/Equity and Advocacy Information Update Bulletin 97.6, September 1997

Parental Involvement In Evaluation And Placement, Including Consent and Reevaluation -- Effective June 5, 1997, a local education agency (LEA) must provide a child's parent an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child. Also an LEA must take reasonable measures to obtain parental consent prior to a reevaluation of a child.

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FINDINGS OF FACT:

During the time relevant to this complaint, the complainant's child was a 12-year-old seventh grader in the Columbus School District. On January 24, 1998, prior to the child enrolling in the district, the child's mother completed a written student enrollment form in anticipation of the child transferring from the Sun Prairie School District to the Columbus School District the next school year. The form includes information about both the child's mother and father (the complainant), including name, address, phone number, and employer for each parent.

On March 13, 1998, the complainant submitted a written form to the Columbus School District requesting that he receive duplicate mailings of school information about the child. In January and April 1998, the Columbus School District received copies of the parents' divorce judgment and marital settlement agreement which indicate that the parents have joint legal custody of the child, the mother has primary physical placement, and the complainant has periods of visitation. All of the above-mentioned forms and documents are in the child's pupil records file at the Columbus School District.

The child transferred to the Columbus School District from the Sun Prairie School District at the beginning of the school year in August 1998. On August 26, 1998, the child was referred to the district for suspected special educational needs. On the same date, the district provided written notice of the referral to the child's mother and requested permission to evaluate. The notice included information explaining parent and child rights under special education laws. The district did not provide such notice to the complainant, and did not seek the complainant's permission to evaluate. The mother gave written permission to evaluate the child on August 26, 1998.

The district sent the child's mother a notice, dated October 6, 1998, of an IEP team meeting to determine initial eligibility for special education scheduled for October 21, 1998. The district sent the complainant notice of the same IEP team meeting on October 15, 1998. The invitation and notice of the IEP team meeting sent to both parents included information about parent and child special education rights.

Both parents attended the IEP team meeting on October 21, 1998. Based upon the evaluation, the IEP team determined that the child has an ED disability and needs special education. The IEP developed for the child on that date includes a statement that the district "informed the parents of their right to additional time and a copy of the evaluation report at the beginning of the IEP team meeting." In addition, the "Parent Consent for Placement" form that was signed by both parents on October 21, 1998, includes information about parent and child rights under special education law.

On April 22, 1998, the district contacted the parents by telephone to schedule an IEP team meeting for April 26 to conduct an interim review of the child's IEP. At the complainant's request, the meeting was instead scheduled for April 28, 1998. The district sent both parents formal, written notice, dated April 23, of the April 28 IEP team meeting. The notices included information about parent and child special education rights.

Both parents attended the IEP team meeting on April 28, 1998. The IEP developed for the child on that date includes a statement that the district "informed the parents of their right to additional time and a copy of the evaluation report at the beginning of the IEP team meeting."

CONCLUSION:

A local education agency (LEA) must ensure that a child's parents are provided prior written notice whenever the LEA 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 addition, the LEA must provide a child's parents the opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child. The LEA must provide parents, upon the child's initial referral for evaluation, upon each notification of an individualized education program meeting, and upon reevaluation of the child, a written explanation of the procedural safeguards available to the parents under special education laws. When a district is informed of the joint custody status and/or location of the child's parent, it has an obligation to provide notice to both parents.

Here, the district had received information about both of the child's parents, including their joint legal custody status and their addresses. The district did not provide the complainant parent with prior written notice of its intent to evaluate the child. There is a violation with regard to issue #1.

The district provided the complainant with prior written notice of the October 21, 1998, and the April 28, 1999, IEP team meetings. The district included required information about parent and child rights under special education laws in the notices for both IEP team meetings. In addition, the district advised the parents of their rights at the beginning of both IEP team meetings and included the required information about their special education rights on the "Consent for Placement" form that was signed by the parents. There is no violation with regard to issues #2 and #3.

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ISSUE #4:

Did the district make changes in the provision of a free appropriate public education (FAPE) without conducting an IEP team meeting?

ISSUE #5:

Did the district fail to provide a FAPE in the least restrictive environment (LRE), including denying the child lunch and recess with her nondisabled peers, during the 1998-99 school year?

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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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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.
(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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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to do all of the following:

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3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.
(d) An explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities.

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Section 115.79, Wisconsin Statutes
Educational placements.

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

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(3) To the maximum extent appropriate, a child with a disability, including a child receiving publicly funded special education in a public or private institution or other care facility, is educated with nondisabled children.
(4) Special classes, separate schooling or other removal of a child with a disability from the regular educational environment occurs only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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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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34 CFR 300.553 Nonacademic settings.

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in s. 300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.

FINDINGS OF FACT:

The child's IEP developed on October 21, 1998, requires that she receive special education services in the resource room two to three times per week for 45 minutes per session, and daily ED program check-in and check-out meetings for 10 minutes. Under the "Determination of LRE" section of the IEP, it states that: "Overall, [the child] has the skills to do well in school. As such, she may not need to be taken out of classrooms for instruction but rather followup (sic) and structured study." The IEP does not specifically state any restrictions on the child's participation with nondisabled children in extracurricular and nonacademic activities. The IEP also does not include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in extracurricular and nonacademic activities.

The IEP indicates that the child's behavior may impede her learning or that of others. As a strategy to address that behavior, the IEP states that a point sheet will be used to communicate her progress to staff and parents and to provide the child with an incentive to improve work. The point sheet is further explained in a separate document, the child's behavior plan. The behavior plan states that if the child begins to fall behind in homework, she will be held after school to work on it until 4:00 p.m. or she will miss specials.

On January 25, 1999, the child's ED teacher sent the parents a memo stating that the behavior point system utilized for children in the ED program had been changed to "hopefully make the students more accountable for their behavior." Under the new system, a student's behavior for a week determined which level the student would be on the next week. The new point system included different consequences than the previous system for students who exhibited poor behavior or failed to meet their individual goals. For example, at level one of the new system, a student would not be allowed to attend lunch and recess in the regular education environment.

District staff stated that, from January through March 1998, implementation of the new point system resulted in the child "most often" being excluded from lunch and recess with nondisabled peers. The district did not conduct an IEP meeting to revise the child's IEP to exclude her from lunch and recess and did not send a formal notice of this change to the child's parents. In March 1998, the child's special education teacher determined that the behavior level system was not effectively motivating the child and quit utilizing the system for the child.

On April 28, 1999, an IEP team meeting was held for an interim review of the child's IEP in response to difficulties she was having, including failing classes, poor work completion, and motivational problems. The complainant received prior written notice of and attended the meeting. At the April 28 meeting, the child's IEP was revised to state that she would receive 100% special education in the self-contained ED classroom with "specials in the mainstream." The April 28 IEP does not include an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in extracurricular and nonacademic activities.

CONCLUSION:

A district must provide a free appropriate public education (FAPE) to each child with a disability. A district meets its obligation to provide FAPE, in part, by providing special education and related services that meet the requirements of the statutes and rules enforced by the department in conformity with a child's IEP. A child's IEP must include an explanation of the extent, if any, to which the child will not participate with nondisabled children in regular classes, in the general curriculum, and in extracurricular and other nonacademic activities. A district must ensure that each child with a disability participates with nondisabled children in nonacademic and extracurricular activities, including lunch and recess, to the maximum extent appropriate to the needs of that child.

The child's October 21 IEP contained no restrictions on the child's participation with nondisabled peers in nonacademic activities, except by reference to the point system. The behavior point system, as explained in the child's behavior plan, allowed for the child being kept after school or excluded from specials if she fell behind in homework. On January 25, 1999, the district implemented a new behavior point system for the child and other children in the ED program that contained different consequences for unsatisfactory behavior.

The new system resulted in the child most often being excluded from lunch and recess with nondisabled peers from January 25 through March 1999. This exclusion was not consistent with the child's October 21 IEP. The district did not conduct an IEP team meeting to revise the child's IEP to exclude her from lunch and recess with nondisabled peers. Neither the October 21 IEP nor the April 28 IEP includes an explanation of the extent to which the child will not participate with nondisabled children in the regular class and in extracurricular and nonacademic activities. There is a violation with regard to issues #4 and #5.

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DIRECTIVE:

The Columbus 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 provides proper notice to the complainant, and to the parents of all children with disabilities in the district, as required by s. 115.782 (1), Wisconsin Statutes (issue #1);
  2. the complainant's child and all children with disabilities in the district participate with their nondisabled peers in nonacademic activities, consistent with the provisions of each child's IEP (issue #4);
  3. the IEP of the complainant's child and the IEPs of all children with disabilities in the district contain an explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities, as required by s. 115.787 (2)(d), Wisconsin Statutes (issue #5).

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
8/27/99
_______________________________________________
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