IDEA Complaint Decision 99-045

On July 7, 1999 (letter dated July 3, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Wauwatosa School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

On July 22, 1999, the complainant and the school district jointly requested mediation services from the Wisconsin Special Education Mediation System. The parties agreed to extend the timeline for the complaint pending mediation, which the department acknowledged in a letter dated July 26, 1999.

On September 14, 1999, the department spoke with one of the complainants. This individual stated that both complainants wanted the department to proceed with the complaint investigation, and that the phone call served as withdrawal of their agreement to place the complaint in abeyance pending mediation.

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 statements provided by the complainant parents and district staff, as well as the relevant educational records for the child. In addition, department staff interviewed the father, the assistant principal, the principal, the special education teacher, and two regular education teachers by telephone.

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ISSUE:

Did the district fail to provide services consistent with the child's individualized education program (IEP)?

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 * * *.
(3) DEVELOPMENT. * * *
(b) The individualized education program team shall do all of the following:
1. In the case of a child whose behavior impedes his or her learning or that of others consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31 (formerly 34 CFR 300, Appendix C, Question 45)

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP. * * *.

FINDINGS OF FACT:

The child whose education is the subject of this investigation is a child with a disability. During the 1998-99 school year, he resided in and attended a middle school in the Wauwatosa Public School District.

During the 1998-99 school year, the school district implemented an IEP developed on June 4, 1998, and reviewed on March 2, 1999. The IEP requires the district to "monitor[ ] [the child] during unstructured situations." The complaint alleges, in part, that the school district failed to monitor the child during physical education class. The first and last portions of each physical education class are unstructured because the students need time in the locker room to change clothes.

During part of the first semester, the physical education teacher did not know that the child's IEP required monitoring the child during the unstructured times in the locker room. When the teacher learned of his responsibilities under the IEP, the teacher monitored the child during the unstructured times; he also moved the child's locker to a central location where the teacher could see and hear him as he supervised the rest of the locker room.

The IEP in effect during the 1998-99 school year also required the district to provide "daily feedback about behavioral goals [sic.]" as a supplementary aid and service. The behavior goal, as specified in his IEP, was for the child to "increase appropriate school behavior to an age-appropriate level so that he can better participate in the general education program." The IEP required daily checklists to monitor the child's progress with regard to the goal. The daily checklists were to note both positive and negative behaviors.

During interviews with department staff, the regular education staff stated that the child did not exhibit negative behaviors during their class time. The educators noted that they treated the child the same as other children in their class because his behavior was similar to children without behavioral difficulties. They did not note this on daily checklists. The special education teacher maintained checklists when she worked with the child, which was a maximum of four times a week.

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.

The child's IEP required the school district to monitor the child during unstructured situations. For part of the first semester of the 1998-99 school year, the child was unmonitored during the unstructured time in physical education class. The complaint is substantiated in this regard.

The child's IEP also required the school district to monitor the child's progress toward his behavioral goal by ensuring that daily checklists recording both positive and negative behaviors were completed. Checklists were not completed daily. The complaint is substantiated in this regard.

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DIRECTIVE:

The Wauwatosa School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) ensuring that the district provides services consistent with the IEP of the child whose education is the subject of this investigation and the IEPs of other children with disabilities.

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
11/12/99
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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