IDEA Complaint Decision 99-048

On August 25, 1999 (letter dated August 25, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the 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. In investigating this complaint, department staff reviewed relevant pupil records and written statements from the school district and complainant. Department staff interviewed the complainant, the child's father, a district special education supervisor, and two diagnostic teachers.

===========================

ISSUE #1:

Did the district fail during 1999 to allow the complainant as an individual brought to the meeting by the parent to participate in the individualized education program (IEP) team meeting?

ISSUE #2:

Did the district fail during 1999 to determine the child's special education placement at an IEP team meeting?

ISSUE #3:

Did the district fail during 1999 to consider whether the child's IEP could be implemented in the school he would attend if not disabled?

ISSUE #4:

Did the district improperly change the child's placement in August 1999 without an IEP team meeting?

APPLICABLE STATUTES AND RULES:

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

* * *

(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. Each team shall consist of all of the following:

* * *

(f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.

* * *

(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.

* * *

Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

* * *

(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. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.

* * *

34 CFR 300.552 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including Secs. 300.550-300.554;

* * *

(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled;

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34CFR 300, Appendix A, Question 28

28. Do parents and public agencies have the option of inviting any individual of their choice be participants on their child's IEP team?

The IEP team may, at the discretion of the parent or the agency, include "other individuals who have knowledge or special expertise regarding the child * * *" (Sec. 300.344(a)(6), italics added). Under Sec. 300.344(a)(6), these individuals are members of the IEP team. This is a change from prior law, which provided, without qualification, that parents or agencies could have other individuals as members of the IEP team at the discretion of the parents or agency.

Under Sec. 300.344(c), the determination as to whether an individual has knowledge or special expertise, within the meaning of Sec. 300.344(a)(6), shall be made by the parent or public agency who has invited the individual to be a member of the IEP team.

* * *

FINDINGS OF FACT:

The child whose education is the subject of this complaint was five years old, bilingual, and in kindergarten during the 1998-99 school year. The child was referred for an individualized education program (IEP) team evaluation due to a suspected disability in the area of speech and language. On June 3, 1999, the district conducted an IEP team meeting which the child's parents and their advocate, the complainant, attended. The complainant states in his letter of complaint that the district told him he could not participate in the meeting but allowed him to participate after he threatened to make a complaint. The complainant is listed on the IEP cover sheet as an IEP team participant and participated in the team meeting. The IEP team determined the child to have OHI and to be a child with a disability.

During the IEP team meeting on June 3, 1999, the IEP team developed an IEP for the child and determined the child's placement. The IEP team considered whether the child's IEP could be implemented in the school he would attend if not disabled. The determination and notice of placement and consent for initial placement dated June 3, 1999, indicates that the child would continue to attend the school he was attending as a nondisabled student. On June 3, 1999, the child's mother gave written consent for placement of her son.

The IEP team also discussed schools that had bilingual and English as a second language (ESL) programs. The team gave the parents the names of bilingual and ESL schools to consider. In June 1999, the child's father visited one of the schools and called the special education supervisor requesting that his son be placed at this bilingual school. The bilingual school the parent had selected was not accepting students. On August 17, 18, 19 and 20, 1999, the special education supervisor and the child's father discussed and determined the child's educational placement by telephone. The other IEP team members did not participate in the discussions and determination. On August 25, 1999, the child started school at one of the ESL schools which the child's father and the special education supervisor discussed in August. On September 9, 1999, the district mailed to the child's parents a determination and notice of placement reflecting the child's placement at the ESL school.

CONCLUSION:

A local educational agency (LEA) must appoint an IEP team for each child referred for special education services. Each IEP team must include, among others, at the discretion of the parent or the LEA, other individuals who have knowledge or special expertise about the child. On June 3, 1999, the LEA held an IEP team meeting for the child whose education is the subject of this complaint. On June 3, 1999, the complainant attended the IEP team meetings at the discretion of the parent as an individual who has knowledge or special expertise about the child. The complainant is listed on the IEP cover sheet as an IEP team participant and participated actively in the team meeting. There is no violation with regard to issue #1.

The IEP team must determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. With respect to location, the IEP team must determine if the child's IEP can be implemented in the school the child would attend if the child were not disabled. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

On June 3, 1999, the IEP team developed an IEP for the child and determined the child's placement based on his IEP. The IEP team considered whether the child's IEP could be implemented in the school he would attend if not disabled. The determination and notice of placement and consent for initial placement dated June 3, 1999, indicates that the child would continue to attend the school he was attending as a nondisabled student. On June 3, 1999, the child's mother gave written consent for placement of her son.

However, on August 17, 18, 19 and 20, 1999, the special education supervisor and the child's father discussed and determined a change in the child's educational placement by telephone. The IEP team did not determine the change in the child's placement. On September 9, 1999, 16 days after the child was placed at a different school, the district mailed to the child's parents a notice of placement. The LEA must provide parents with prior written notice whenever the LEA proposes to change the educational placement of a child with a disability. The district improperly changed the child's placement in August 1999. There is a violation with regard to issues #2, #3 and #4.

_______________

DIRECTIVES:

Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district:

  1. Conducts an IEP team meeting to determine the special education placement for each child with a disability and to consider whether the IEP could be implemented in the school the child would attend if not disabled.
  2. Provides parents prior written notice whenever the district proposes to change the educational placement of a child with a disability.
  3. Conducts an IEP team meeting to determine whether the current placement for the child whose education is the subject of this complaint is appropriate and provides the child's parents with proper notice of their decision.

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.

_______________

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/SJP
10/26/99
______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

jfd

For questions about this information, contact Patricia Williams (608) 267-3720