IDEA Complaint Decision 99-052

On September 17, 1999 (letter dated September 15, 1999), the Department of Public Instruction received a complaint under the Individuals with Disabilities Education Act (IDEA) against the Suring 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 relevant education records of the child, documents provided by the complainant, and documents and written statements submitted by the district in response to the complaint. Department staff spoke by telephone with the complainant, a director of special education from CESA #8, and two special education teachers and one regular education teacher from Gillett High School.

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ISSUE:

Did the public agency fail to provide the complainant's child with the required number of hours of instruction during the 1998-1999 and 1999-2000 school years?

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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Wisconsin Administrative Code, Section PI 8.01

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and hours of instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,137 hours of direct pupil instruction in grades 7 through 12. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

State Individuals with Disabilities Education Act (IDEA) Complaint No. 94-057, Superior School District, March 17, 1995.

A school district is required to provide a FAPE to each resident child with [a disability]. In order to provide a FAPE, a district must, in part, provide special education and related services that meet the statutes and rules enforced by the department. One of the rules enforced by the department requires a district to schedule annually at least 1,137 hours of instruction for children in grades 7 through 12. The rule states that the instructional hours are computed as the period from the start to the close of each pupil's daily instructional schedule, and that the lunch period is not included in this computation. A district may schedule fewer hours of instruction for a child with [a disability] only if the participants in the meeting to develop the child's IEP determine that the child's individual needs dictate that fewer hours be scheduled. Such a determination must be reflected in the child's IEP. Similarly, deviations from the normal school day, such as instruction during the lunch period, must be reflected in the child's IEP and must be made based upon the child's individual needs.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 15-year-old student with a cognitive disability (CD) who attends Gillett High School. The child is a resident of the Suring School District. The Suring School District contracts with Cooperative Educational Service Agency (CESA) #8 for certain special education services, including a CD program. The CD program operated by CESA #8 is located in the Gillett School District.

During the 1998-99 school year, in accordance with his 1998-99 individualized education program (IEP), the child received special education services in the cognitive disabilities-severe classroom at Gillett High School. He also attended some regular education classes at the high school. The child rode a regular school bus to the Suring School District and then rode a special education bus from Suring to Gillett High School. He arrived at school at approximately 8:10 a.m. Infrequently, if road conditions were poor or the bus transfer did not proceed smoothly, he arrived at school at 8:15 a.m. From the beginning of the school year until October or November 1998, the child departed from school at 2:30 p.m. From approximately November 1998 until the end of the 1998-99 school year, the child departed from school at 2:40 p.m.

Based on an arrival time of 8:10 a.m. and departure time of 2:30 p.m., the child would have received approximately 1,139 hours of instruction for the 1998-99 school year. In October or November 1998, the child's departure time was changed to 2:40 p.m. With arrival at 8:10 a.m. and departure at 2:40 p.m., the child would have received 1,170 hours of instruction for the school year. Therefore, the child received approximately 1,139 to 1,170 hours of instruction during the 1998-99 school year. Because the exact date of the schedule change is unknown, the department is unable to determine the exact number of hours of instruction the child received.

During the 1999-2000 school year, in accordance with his current IEP, the child has received special education services in the cognitive disabilities/learning disabilities classroom at Gillett High School. The child also attends some regular education classes with non-disabled peers, including homeroom. His 1999-2000 IEP requires that the child receive "[s]pecial transportation provided by home school district to follow Gillett School calendar and day." Classes at Gillett High School begin with homeroom at 8:00 a.m. and end at 3:14 p.m.

During the first three weeks of the school year, the child's bus was arriving at school later than 7:55 a.m., as scheduled. As a result, the child was a minute or two late to homeroom several days during the first three weeks of school. The child's homeroom teacher stated that the child also missed homeroom entirely on two days because the bus was late. The child was never late for an academic class at 8:15 a.m. The district communicated with the bus company's manager about the child's arrival time to ensure that the child arrives at school by 8:00 a.m.

The regular education teacher for the child's last class of the school day has allowed the child to use the last five to ten minutes of class to gather and organize his materials and books for the next day and go to his locker with an aide. The teacher determined that this arrangement meets the child's individual needs by reducing his anxiety about preparing his books and materials for the next school day and does not reduce his instruction time. The child has been departing from school on the bus after the 3:14 dismissal time. The district has scheduled more than 1,137 hours of instruction for the child during the 1999-2000 school year.

CONCLUSION:

A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a district must take when it changes the provision of special education to a child. State law requires a district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A district may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP and must be based upon the child's individual needs.

During the 1998-99 school year, the child arrived at school at approximately 8:10 a.m. In October or November 1998, the child's departure time was changed from 2:30 p.m. to 2:40 p.m. Therefore, the child received approximately 1,139 to 1,170 hours of instruction during the 1998-99 school year. This amount exceeds the minimum annual hours of instruction required by state law. The complaint is not substantiated with regard to the 1988-99 school year.

The child's 1999-2000 IEP requires that he receive "[s]pecial transportation provided by home school district to follow Gillett School calendar and day." During the first three weeks of school, the child was a minute or two late to homeroom on several occasions and missed homeroom entirely twice due to late bus arrival. He was never late for an academic class at 8:15 a.m. The district contacted the bus company's manager in September to ensure that the child arrived at school by 8:00 a.m. The regular education teacher for the child's last class of the school day allows the child to use the last five or ten minutes of class to organize his materials for the next day and to prepare for departure at the 3:14 p.m. dismissal time. The district has scheduled more than the minimum 1,137 annual hours of instruction during the 1999-2000 school year. Furthermore, transportation has been provided to the child consistent with the provisions in his IEP. The complaint is not substantiated with regard to the 1999-2000 school year.

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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
11/15/99
__________________________________________
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