IDEA Complaint Decision 99-053

On September 24, 1999 (letter dated the same), a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools. On October 1, 1999, the complainant expanded the number of issues in this complaint. 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 correspondence and relevant pupil records from the school district. Department staff also had discussions with the foster parent, a regional administrator, a special education supervisor, a special education teacher, and two caseworkers associated with Milwaukee County Child Welfare Agency.

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ISSUE #1:

Did the district fail to convene an individualized education program (IEP) team meeting to determine the special education placement for the child during the 1999-2000 school year?

ISSUE #2:

Did the district fail to provide the child with a free appropriate public education (FAPE) by excluding him from school during the 1999-2000 school year?

ISSUE #3:

Did the district fail to give a copy of the child's IEP to the child's parent with the notice of placement?

APPLICABLE STATUTES AND RULES:

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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

(1m) 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:
(a) The parents of the child.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(c) Determine the special education placement for the child under s. 115.79.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(3) DEVELOPMENT. * * *
(e) The local educational agency shall give a copy of the child's individualized education program to the child's parents with the notice of placement under s. 115.792 (2).

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Section 120.13, Wisconsin Statutes
School board powers.

The school board of a common or union high school district may * * *:
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c) 4. or (e) 4. or s. 119.25 (2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others, or for conduct while not at school or while not under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or his or her designee who shall be someone other than a principal, administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the suspension was inappropriate, given the nature of the alleged offense, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under s. 118.16(4)(a).

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34 CFR 300.121 Free appropriate public education (FAPE).

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(d) FAPE for children suspended or expelled from school.
(1) A public agency need not provide services during periods of removal under ss. 300.520 (a) (1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed.

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34 CFR 300.347 Content of IEP.

(a) General. The IEP for each child with a disability must include--

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(6) The projected date for the beginning of the services and modifications described in paragraph (a) (3) of this section, and the anticipated frequency, location, and duration of those services and modifications; and (emphasis added)

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34 CFR 300.501 Opportunity to examine records; parent participation in meetings.

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(c) Parent involvement in placement decisions. (1) Each public agency shall insure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

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(3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.
(4) A placement decision may be made by a group without the involvement of the parents, if the public agency is unable to obtain the parents' participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement, including information that is consistent with the requirements of s. 300.345 (d).

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34 CFR 300.503 Prior notice by the public agency; content of notice.

(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
(ii) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

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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--

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(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Attachment 1¿Analysis of Comments and Changes (64 FR 12594)

The "location" of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service.

Office of Special Education Programs (OSEP) Letter to Fisher, 21 IDELR 992, July 6, 1994.

The placement team¿must select the¿school or facility that the child would attend if not disabled, if appropriate, or another school as close as possible to the child's home, that is consistent with the student's IEP and the option on the continuum selected to implement the student's IEP. It is these three components--the education program set out in the student's IEP, the option on the continuum in which the student's IEP is to be implemented and the school of facility selected to implement the student's IEP--that comprise a placement decision under Part B.

FINDINGS OF FACT:

The child whose education is the subject of this complaint receives special education services at the Milwaukee School of Languages during the 1999-2000 school year. On February 3 and 10, 1999, an IEP team met to reevaluate the child. The IEP team determined that the child continues to be a child with a disability. At these meetings, the IEP team also developed the child's IEP for the period beginning February 10, 1999, and ending February 9, 2000, in addition to determining placement of the child in Browning Elementary School. The foster parent, with whom the child has lived for the last seven years, and the complainant participated in the IEP team meetings. The foster parent also received a copy of the foster child's IEP and placement offer. At these meetings, the IEP team did not discuss and determine the foster child's placement for the fall of 1999.

On March 15, 1999, the IEP team met to consider whether the child needed extended school year (ESY) services. The IEP team determined that the child needed ESY services, and proceeded to develop an ESY IEP and placement offer for the child. On March 16, 1999, the district sent the foster parent a notice of placement indicating that the ESY services would be provided to her foster child at the 65th Street School beginning on June 21, 1999. The foster parent participated in the March 15, 1999, IEP team meeting and received a copy of the foster child's ESY IEP and placement offer. At this meeting, the IEP team did not discuss and determine the foster child's placement for the fall of 1999.

On May 26, 1999, the IEP team met to review the foster child's IEP. The IEP team did not make any changes to the child's IEP and placement. The foster parent and complainant participated in this meeting. At this meeting, the IEP team did not discuss and determine the child's placement for the fall. No other IEP team meetings were conducted following this meeting prior to the beginning of school in the fall of 1999. In July or August 1999, the district notified the foster parent by mail that her foster child would be placed in Milwaukee School of Languages for the 1999-2000 school year. On January 13, 1999, the foster parent had submitted her fall school selection list to the district, which included Milwaukee School of Languages and two other choices.

During the 1999-2000 school year, the child received out-of-school suspensions on August 30, 1999, and October 12, 1999. At the time of the complaint, the child had received no other disciplinary removals during the 1999-2000 school year.

CONCLUSION:

A school district must appoint an IEP team to determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. The placement decision includes the services to be provided, the location of the services (e.g., regular classroom, resource room, etc.) and the building or facility the child will attend. With respect to the building or facility, 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 complainant alleges that the district failed to convene an IEP team meeting to determine the special education placement for the child during the 1999-2000 school year. The district held IEP team meetings relating to the child on February 3 and 10, March 15, and May 26, 1999, prior to the 1999-2000 school year. These IEP team meetings did not discuss or determine the building or facility the child would attend for the 1999-2000 school year. For the 1999-2000 school year, the child's placement was changed from Browning Elementary School to Milwaukee School of Languages. This decision was not made by an IEP team. There is a violation regarding issue #1 of the complaint. However, since the filing of this complaint, the district convened an IEP team meeting and the IEP team determined the child's placement, including the building the child will attend. The district has, therefore, taken steps to correct this violation with regard to this child.

The complainant alleges that the school district failed to give a copy of the child's IEP to the foster parent after a May 26, 1999, IEP team meeting. The May 26, 1999, IEP team meeting participants, including the foster parent and complainant, reviewed the child's IEP that was developed on February 10, 1999, for the period beginning February 10, 1999, and ending on February 9, 2000. As a result of the May 26, 1999, IEP team meeting, there were no changes to the foster child's IEP or to his placement. Because no changes were made in the free appropriate public education to be provided to the child or in his placement, the district was not required to give a copy of the child's IEP to the foster parent. There is no violation regarding Issue #3 of the complaint.

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet the requirements of the statutes and rules enforced by the department, including those related to student suspension. State law governs procedures relating to the suspension of students. Under state law, a child with a disability may be suspended for up to five days or for up to ten consecutive days if a notice of expulsion has been sent to the child's parents. Under federal special education law, a district need not provide services to a child with a disability during disciplinary removals totaling ten or fewer school days in a school year. During the 1999-2000 school year, the child was suspended out-of-school for two days. The suspensions did not violate either state standards related to suspension or federal special education law. Issue #2 of the complaint is not substantiated.

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DIRECTIVE:

The 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 conducts an IEP team meeting to determine the special education placement for children with disabilities. The district has already met this directive with regard to the child who is the subject of this complaint. The department is currently working with the district to ensure that the placements of all children with disabilities are determined by IEP teams. The district has open complaints regarding this compliance issue. The department will, therefore, consolidate its oversight of the district's corrective action plans dealing with this placement issue with this CAP.

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 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
2/3/00
__________________________________________
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