IDEA Complaint Decision 99-036

On May 28, 1999 (letter dated May 27, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools. 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. As part of this investigation, department staff reviewed documents and relevant education records of the child submitted by the district. Department staff interviewed the child's foster parent, the complainant, a district special services administrator, a special education supervisor, and the principal of the child's school.

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ISSUE #1:

Did the district not permit the child's individualized education program (IEP) team to consider including speech and language services in the child's IEP at a May 26, 1999, IEP team meeting?

ISSUE #2:

Did the district improperly refuse to conduct an IEP team meeting to consider speech and language services for a child with a disability during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

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

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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under s. 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.
(b) Develop an individualized education program for the child under s. 115.787.
(c) Determine the special education placement for the child under s. 115.79.

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Wisconsin Statutes, Section 115.782
Evaluations.

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(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:

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c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.

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(c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b) 2.

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Wisconsin Statutes, Section 115.787
Individualized education programs.

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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.
(b) The individualized education program team shall do all of the following:

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4. Consider the communicative needs of the child, and, in the case of a child who is hearing impaired, consider the child's language and communicative needs, opportunities for direct communications with peers and professional personnel in the child's language and communicative mode, academic level and full range of needs, including opportunities for direct instruction in the child's language and communicative mode.

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

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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.

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34 CFR 300.343 Meetings.

(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability¿

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(d) Review. Each public agency shall initiate and conduct meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year.

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; and
(2) Scheduling the meeting at a mutually agreed on time and place.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix C, Questions 10, 11, 44 and 45

10. How frequently must IEP meetings be held and how long should they be?

Section 614(a)(5) of the Act provides that each public agency must hold meetings periodically, but not less than annually, to review each child's IEP and, if appropriate, revise its provisions. The legislative history of the Act makes it clear that there should be as many meetings a year as any one child may need.

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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.

44. Must the IEP include all special education and related services needed by the child or only those available from the public agency?

Each public agency must provide a free appropriate public education to all handicapped children under its jurisdiction. Therefore, the IEP for a handicapped child must include all of the specific special education and related services needed by the child-as determined by the child's current evaluation.

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45. Is the IEP a commitment to provide services-i.e., must a public agency provide all of the services listed in the IEP?

Yes. Each handicapped child's IEP must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act.

FINDINGS OF FACT:

At the beginning of the 1998-99 school year, the child with a disability whose education is the subject of this complaint was ten years old and received special education services for a cognitive disability (CD), emotional disturbance (ED), speech and language disability and other health impairment (OHI). The child's 1998-99 individualized education program (IEP) included speech and language services and other services. On February 3, 1999, the district held an IEP meeting to determine the child's continuing eligibility for special education. The IEP team determined that the child had impairments in CD, ED, and OHI and did not continue to have a speech and language impairment. On February 10, 1999, the IEP team met and developed an annual IEP and determined continuing placement for the child for the period beginning February 10, 1999, and ending February 10, 2000. This IEP does not include speech and language services. The IEP team decided that they would review the child's February 10, 1999, IEP in May 1999.

On May 26, 1999, the IEP team met and reviewed the child's IEP. The child's foster mother and a parent advocate were present. The IEP team determined that the goals for the child were appropriate and did not revise the child's IEP. The IEP team discussed speech and language services and the results of the child's February 3, 1999, reevaluation. The team determined that more evaluative data would be needed to determine whether the child needs speech and language services. At the May 26, 1999, IEP team meeting, the local educational agency (LEA) representative offered to reconvene the IEP team meeting to consider the child's need for speech and language services. There was no speech and language therapist at the IEP team meeting. On June 25, 26, and 30, 1999, a district special education supervisor called the child's foster mother to discuss the child's need for speech and language evaluation. The foster mother informed the supervisor that the child was hospitalized and that she would like to wait until the child was released from the hospital and returned to school before scheduling an IEP team meeting.

CONCLUSION:

The school district is required by law to initiate and conduct meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year, but can occur at any time within in the year, including upon reasonable request by the parents of a child with a disability. The IEP must be based upon the child's unique needs and include all services necessary to meet those needs. If the IEP team determines there is insufficient evaluative data to determine a child's needs, the team must gather additional evaluation data.

On February 10, 1999, the district developed an IEP for the child for the period beginning February 10, 1999, and ending February 10, 2000. On May 26, 1999, the IEP team met and reviewed the child's IEP. The IEP team considered speech and language services and determined that more evaluation data was needed to determine whether the child needs speech and language services. There is no violation in regard to issue #1. The district contacted the child's foster mother to schedule an IEP meeting to consider further the child's speech and language needs. There is no violation in regard to issue #2.

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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
7/26/99
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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