IDEA Complaint Decision 99-040

On June 3, 1999, a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools (MPS). 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, as well as materials submitted by the complainant.

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ISSUE:

Did the district fail during the 1998-99 school year to implement provisions of the child's individualized education program (IEP) relating to procedures for informing the child's parent of the child's progress toward the annual goal contained on page 15?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(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 * * *.

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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 10-year-old resident of the district. On March 5, 1999, an advocate filed an Individuals with Disabilities Education Act (IDEA) complaint with the department on behalf of this child. Findings of fact from that investigation, Complaint 99-014, relate to this complaint investigation. The portions of the findings from the previous investigation which are relevant to this investigation are:

On December 16, 1998, the child was referred by a school psychologist for an initial evaluation for the suspected disability of other health impaired (OHI). * * * On January 8, 1999, the parent gave consent for the proposed evaluation.

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On February 16, 1999, the IEP team met to discuss the results of the evaluation. The parent and an advocate attended the meeting. At the meeting, the district determined that the child had a disability of OHI and the need for special education. The team developed the child's IEP goals. At the request of the advocate, the team discussed how the child's regular education teacher could help the child until the IEP was completed. The advocate insisted that these items be incorporated into an "interim" IEP as follows:

Mother will provide spiral notebook to school to include (child) homework assignments and communication between parent and school; Parent will spend two full days in the classroom with (child) during the next week (T&TH); Therapist will be contacted by mother to attend meeting on 2/24/99 at 1:30 p.m.; and Parent will send note to teacher if there is a medication change.

At the February 16, 1999, IEP meeting, the district informed the parent that her child's initial IEP needed to be completed as soon as possible, and that the parent must give consent for her child's placement before the district could provide any IEP services to her child.

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Meetings also were held on February 24, March 10, and March 23, 1999. The provisions requested by the advocate on February 16, 1999, were incorporated into the child's IEP, completed on March 23, 1999, under an annual goal that reads: "Interim IEP written 2/16/99." No other pages of the March 23, 1999, IEP include any reference to staff making entries in a spiral notebook to be sent to the child's parent. It was not until the March 23 meeting that the parent signed the consent for placement form for her son to attend Forest Home Avenue School. The child was placed in special education on March 29, 1999.

Entries were made in a spiral notebook by the child's regular education teacher on March 24, 25, 26, and April 12, 1999. After May 18, a substitute teacher began teaching this class due to the original teacher's illness. The substitute did not make entries in the notebook because she understood that it was for recording only missing assignments and she believed the child was not missing any assignments during her time as the child's teacher.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a proper IEP. The IEP must specify special education and related services to meet the child's needs and all services in the IEP must be provided. An LEA must complete an IEP, determine the child's placement, and obtain the parent's informed consent prior to providing special education services for the first time.

The child's initial IEP and placement were completed on March 23, 1999. The child's IEP includes the "interim" IEP language which indicates that a spiral notebook is to be sent home to the child's parent as a means of communication. This language was included at the insistence of the advocate during the February 16 IEP team meeting. The use of the spiral notebook specifically was intended to facilitate communication between the parent and regular education teacher pending the completion of the IEP and placement and the consent for initial provision of service to the child. It was intended to offer a service to the parent which was not a special education service. The parent consented to the initial provision of services at the March 23, IEP team meeting. The district began providing IEP services to him on March 29, 1999. The district was not required to implement the spiral notebook provision because it was not a special education service and it was intended to cover only the time period until the IEP was finalized. 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
7/29/99
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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