IDEA Complaint Decision 99-058

On October 13, 1999 (letter dated October 5, 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 communications from the complainant and the district. In addition, department staff interviewed the complainant, a district special education supervisor and a district special services region administrator.

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ISSUE #1:

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

ISSUE #2:

Did the district change the child's placement in September and October 1999 without providing the child's parent prior writen notice?

ISSUE #3:

Did the district fail to provide the youth an educational placement consistent with his IEP in September and October 1999?

APPLICABLE STATUTES AND RULES:

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

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(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.

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(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.

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Wisconsin Statutes, Section 115.79
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program.

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Wisconsin Statutes, Section 115.792
Procedural safeguards.

(1) SAFEGUARDS ENSURED.

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(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.

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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--
(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 ss.  300.550-300.554;
(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;
(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;
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a seven-year-old resident of the district. On June 8, 1999, the district conducted an IEP team meeting which the child's mother attended. During this meeting the IEP team determined the child is a child with a disability due to autism and speech and language impairments and has a need for special education. The team proceeded to develop an IEP for the child and determined the child's initial special education placement, with services to begin August 25, 1999. These services are specially designed physical education and vocational education; functional/integrated skills and strategies in the areas of reading, written language, math, emotional and social strategies and skills support to be provided daily in the special education classroom; and speech and language services to be provided three times per week/30 minutes per session in the speech and language room. On June 8, 1999, the child's mother gave written consent for placement of her son.

On August 25, 1999, the child began attending school as provided in the notice of placement. On September 21, 1999, the district approved staffing adjustments including the closing, effective September 27, 1999, of the special education autism unit the child was attending. On September 22, 1999, a district special education supervisor called the child's stepfather to inform him of the closing of the program and to arrange an IEP team meeting for the child. On September 23, 1999, the child's mother called the supervisor to express her displeasure regarding the closing of the program. She then picked her child up from school.

On September 24, 1999, the child's mother called a district special services region administrator and they arranged a meeting for the child's mother to visit another district school and scheduled an IEP team meeting to be held September 27, 1999, to determine the child's continuing placement. On September 24, 1999, a written notice for this meeting was sent to the child's parents. The program the child attended was closed on September 27, 1999. The child was not provided a new placement on September 27, 1999. On September 27, 1999, when the child's mother visited a different school with the special education supervisor, she requested that the IEP team meeting to be held that afternoon be cancelled. The meeting was cancelled and the special education supervisor suggested an IEP team meeting be held on September 30, 1999. A written notice for this meeting was not sent to the child's parents. On September 30, 1999, the special education supervisor sent a letter to the child's mother requesting that the parent call her to discuss the parent's concerns and the child's needs. On September 29, 30, and October 1, 1999, the child's mother called the special services region administrator. The child's mother requested and was provided further opportunities and time to visit additional school sites. On October 1, 1999, the special services region administrator sent a letter to the child's mother confirming the additional school site visits and informing her that an IEP team meeting needed to be held to determine a school site.

On October 5, 1999, the district sent a notice to the child's parents informing them that an IEP team meeting would be held October 13, 1999. On October 13, 1999, the district conducted an IEP team meeting which the child's parents attended. The IEP team did not revise the IEP but did make a placement decision. The child's parents did not agree with the placement decision. The child's parents left the IEP team meeting before it adjourned. On October 15, 1999, the district sent to the child's parents a written notice of placement and a copy of the child's IEP. The child's placement was scheduled to start on October 20, 1999. Between September 24, 1999, and October 20, 1999, the district did not provide a placement for the child and the child did not attend school. Between June 8, 1999, and October 15, 1999, the child's parents did not receive a written notice of a change in the child's placement.

CONCLUSION:

A local educational agency (LEA) must appoint an IEP team for each child referred for special education services. 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. 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.

Between August 25, 1999, and September 24, 1999, the child received services according to his IEP and placement. On September 22, 1999, the child's parents were informed by telephone that their child's placement would need to be changed effective September 27, 1999, when the special education program at the school he was attending would be closed based on a district administrative decision. The program the child attended was closed on September 27, 1999. Beginning on this day and continuing until October 20, 1999, the district did not make available to the child services consistent with his IEP. Although during this time the district did attempt to arrange IEP team meetings at a time mutually agreeable to the parents, services were not made available to the child consistent with his IEP. Districts are not permitted to discontinue offering services to a child while attempting to arrange IEP team meetings to consider placement options.

The LEA must provide parents with prior written notice whenever the LEA proposes to change the educational placement of a child with a disability. Changes in a child's placement must be made by an IEP team. The child's IEP team did not determine the change in the child's placement which resulted from the closure of the program the child had attended. The district did schedule an IEP team meeting for September 27, 1999, but the meeting was cancelled at parent request. On October 15, 1999, 19 days after the child's placement was terminated due to the closing of the program, the district mailed to the child's parents a notice of placement. The district improperly changed the child's placement in September 1999, without an IEP team meeting. The district proposed changing the child's placement in September 1999, without providing prior written notice. Between September 27 and October 20, 1999, the district failed to provide the child with a free appropriate public education (FAPE). The child was not provided FAPE for 18 school days. There is a violation with regard to issues #1, #2 and #3.

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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 will:

  1. conduct an IEP team meeting before changing the placement of a child with a disability,
  2. 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,
  3. conduct an IEP meeting to provide the child whose education is the subject of this complaint an educational placement consistent with his IEP and consider whether the child requires additional services because of the delay in providing a placement.

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
12/13/99
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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