IDEA Complaint Decision 00-004

On January 18, 2000 (letter dated January 14, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against 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 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 documents and relevant education records submitted by the district as well as documents submitted by the complainant. Department staff interviewed a special services administrator, three special education teachers, and a principal. Issues 1, 2, and 4, which concern the development of the individualized education programs for all three children whose education is the subject of this complaint, will be addressed first. Next the department will address issue #3, which relates to repeatedly excluding one of the children from school.

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ISSUE #1:

the district fail to have in effect current individualized education programs (IEPs) for three children with disabilities during the 1999-2000 school year?

ISSUE #2:

the district fail to have the IEPs of three children with disabilities accessible to district staff responsible for implementation of each child's IEP during the 1999-2000 school year?

ISSUE #4:

the district, in the development of IEPs for three children with disabilities whose behavior impedes their learning or that of others, fail to consider strategies to address their behavior?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
Definitions.

In this subchapter:

* * *

(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.

* * *

Wisconsin Statutes, Section 115.77
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:

* * *

(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 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 115.777.
(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

* * *

(b) Develop an individualized education program for the child under 115.787.

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Wisconsin Statutes, Section 115.787
Individualized education programs.

 

(1) REQUIREMENT THAT PROGRAM BE IN EFFECT. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.

* * *

(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.

* * *

(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.
2. Revise the individualized education program as appropriate to address all of the following:
a. Any lack of expected progress toward the annual goals and in the general curriculum.
b. The results of any reevaluation conducted under 115.782.
c. Information about the child provided to or by the child's parents, as described in 115.782.
d. The child's anticipated needs.
e. Other matters.

* * *

 

34 CFR 300.342 When IEPs must be in effect.

 

(a) General. At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that--

* * *

(2) The child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation* * *.

* * *

FINDINGS OF FACT:

This complaint concerns the education of three children who attend a district middle school. Child A is a 7th grade child with a learning disability. Child B is a 14-year-old 8th grade child with a disability due to emotional disturbance. Child C is a 15-year-old 8th grade child with a disability due to emotional disturbance.

Child A

On July 14, 1998, the district conducted an individualized education program (IEP) team meeting to develop an IEP for child A. The IEP developed by the team at that meeting covered the period July 15, 1998, to July 15, 1999. The district conducted the next IEP team meeting for the child on February 24, 2000, and March 10, 2000. During the period between August 25, 1999, and January 14, 2000, when this complaint was filed, the child's teacher continued to utilize the goals and objectives from the IEP that was developed on July 14, 1998. An addendum attached to child A's IEP developed on July 14, 1998, states that the child's behaviors do not impede his learning or that of others. However, during the 1999-2000 school year, his behaviors often have resulted in suspensions from school.

Child B

On February 4, 1999, the district conducted an IEP team meeting to determine whether child B continued to have a disability, develop an IEP, and determine placement. The IEP developed by the IEP team covered the period February 4, 1999, to February 4, 2000. Child B's mother attended the IEP team meeting. The IEP includes information provided by the parent regarding her son's behavior and a goal, "increase appropriate behavior," with objectives to address the child's behavior. Page I-10 of child B's IEP developed on February 4, 1999, lists positive behavioral interventions, strategies, and supports that were considered and to be implemented to address child B's behavior. On January 13, 2000, the district conducted an IEP team meeting to review and revise child B's IEP. Child B's mother attended the IEP team meeting. Page I-10 of child B's IEP developed on January 13, 2000, lists positive behavioral interventions, strategies, and supports that were considered and were to be implemented to address child B's behavior. This IEP also includes a behavior plan for the child.

Copies of Child B's IEP were located in the district's central file and in the child's cumulative folder located in the middle school office. In January 2000, the middle school secretary and a special education teacher were unable to locate a copy of child B's IEP in the child's cumulative folder. The middle school secretary and the special education teacher did not contact the district's central office for child B's IEP. The diagnostic teacher assigned to the middle school located a copy of child B's IEP.

Child C

On June 8, 1999, the district conducted an IEP team meeting to determine if child C continued to have a disability, to review and revise his IEP, and to determine placement. The IEP developed by the IEP team covered the period August 25, 1999, to August 24, 2000. Child C's mother attended the IEP team meeting. The IEP includes information provided by the child's mother regarding her son's behavior at home. Page I-10 of child C's IEP developed on June 8, 1999, lists positive behavioral interventions, strategies, and supports that were considered and were to be implemented to address child C's behavior. The IEP also includes objectives that address the child's behavior. On January 13, 2000, the district conducted an IEP team meeting to review and revise the child C's IEP. Child C's mother attended the IEP team meeting. Page I-10 of child C's IEP developed on January 13, 2000, lists positive behavioral interventions, strategies, and supports that were considered and were to be implemented to address child C's behavior. This IEP also includes a behavior plan for the child.

Copies of child C's IEP were located at the district's central file and in the child's cumulative folder located in the middle school office. In December 1999, child C's special education teacher was informed by the school social worker that she had child C's IEP from his cumulative record. In January 2000, the middle school secretary and a special education teacher were unable to locate a copy of child C's IEP in the child's cumulative folder. The middle school secretary and the special education teacher did not contact the district's central office for child C's IEP. The diagnostic teacher assigned to the middle school located a copy of child C's IEP.

CONCLUSION:

A district meets its obligation to provide a free and appropriate public education (FAPE) to a child with a disability in part by providing special education and related services that meet the statutes and rules enforced by the department and in conformity with an IEP. Among the rules enforced by the department are the rules requiring a district to initiate and conduct meetings periodically to review and, if appropriate revise each child's IEP. A meeting for this purpose must be held at least once a year and an IEP must be in effect for each child at the beginning of each school year.

The district conducted an IEP team meeting on February 4, 1999, during which an IEP was developed for child B. The IEP developed by the IEP team covered the period February 4, 1999, to February 4, 2000. There is no violation with regard to issue #1 for child B. The district conducted an IEP team meeting on June 8, 1999, during which an IEP was developed for child C. The IEP developed by the IEP team covered the period August 25, 1999, to August 24, 2000. There is no violation with regard to issue #1 for child C. The district conducted an IEP team meeting on July 14, 1998, during which an IEP was developed for child A. The ending date of this IEP is July 14, 1999. Child A's teacher continued to provide special education services to the child based on this IEP until another IEP was developed at IEP team meetings held on February 24, 2000, and March 10, 2000. An IEP meeting for Child A was not held at least once a year and a current IEP was not in effect for child A at the beginning of the 1999-2000 school year. There is a violation with regard to issue #1 for child A. Child A was included by the district on its PI-2197 Child Count Report dated December 1, 1999. The report will be amended to delete one child for whom the district is eligible to receive funding, and the allocation of funding to the district will be reduced accordingly.

A district must provide each child with a disability 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 team must, in the case of a child whose behavior impedes his learning or that of others, consider strategies and supports to address the child's behavior. The district must ensure that each child's IEP is accessible to each service provider who is responsible for implementing the IEP.

During the time period covered by this complaint Child A did not have a current IEP. Child B and Child C each had current IEPs that included on page I-10 a list of positive behavioral interventions, strategies, and supports to address each child's behavior that were considered by the IEP teams and objectives that addressed behavior. IEPs developed on January 13, 2000, for child B and child C included a list of positive behavioral interventions, strategies, and supports to address the student's behaviors and behavior plans for each child. The IEPs for child B and child C are maintained in the student's cumulative record at the middle school and in the district central services file. School staff was not able to locate the IEPs for child B and child C in the children's cumulative records at the school. The school social worker had the IEP for child C in her office at the school. The IEPs for both children were available from the district central services file. The diagnostic teacher assigned to the middle school located a copy of the IEP for child B and child C. There is no violation with regard to issues # 2 and #4.

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ISSUE #3:

the district deny a child with a disability a free appropriate public education (FAPE) by repeatedly excluding him from school during the 1999-2000 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

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 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 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 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 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 118.16(4)(a).

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34 CFR 300.121 Free appropriate public education (FAPE).

* * *

(d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under 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.

* * *

34 CFR 300.519 Change of placement for disciplinary removals.

For purposes of removals of a child with a disability from the child's current educational placement under 300.520-529, a change of placement occurs if--

* * *

(b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

34 CFR 300.520 Authority of school personnel.

(a) School personnel may order--

(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under 300.519(b));
(ii) After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under  300.121(d) * * *.
(b)(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under 300.519* * *
(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.
(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.
(2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Answers to Some Commonly Asked Questions About Discipline Under IDEA, 64 FR 12415.

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4. Do the IDEA regulations mean that a child with a disability cannot be removed from his or her current placement for more than ten school days in a year?

No. School authorities may unilaterally suspend a child with a disability from the child's regular placement for not more than 10 school days at a time for any violation of school rules if nondisabled children would be subjected to removal for the same offense. They also may implement additional suspensions of up to ten school days at a time in that same school year for separate incidents of misconduct if educational services are provided for the remainder of the removals, to the extent required under 300.121(d). * * * However, school authorities may not remove a child in a series of short-term suspensions (up to 10 school days at a time), if these suspensions constitute a pattern that is a change of placement because the removals cumulate to more than 10 school days in a school year and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. But not all series of removals that cumulate to more than 10 school days in a school year would constitute a pattern under 300.519(b).

5. What must a school district do when removing a child with a disability from his or her current placement for the eleventh cumulative day in a school year?

Beginning on the eleventh cumulative day in a school year that a child with a disability is removed from his or her current placement, the school district must provide those services that school personnel (for example, the school administrator or other appropriate school personnel) in consultation with the child's special education teacher determine to be necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. School personnel would determine where those services would be provided. This means that for the remainder of the removal that includes the eleventh day, and for any subsequent removals, services must be provided to the extent determined necessary, while the removal continues. 300.121(d)(2) and (3).

* * *

FINDINGS OF FACT:

During the 1999-00 school year, child A attended a district middle school. Child A is a 7th grade child with a learning disability. Between August 25, 1999, and January 14, 2000, school was in session for 85 days. The student was absent excused 1.5 days and truant 3 days. The district suspended the child for a total of 14 days. No suspension was for more than five consecutive days. The student was suspended from school on the following dates:

September 10, 1999December 7, 1999
September 28, 1999December 8, 1999
November 3, 1999December 9, 1999
November 8, 1999December 13, 1998
November 9, 1999December 14, 1999
November 17, 1999December 15, 1999
November 23, 1999December 16, 1999

During the current school year, the child received no in-school suspensions. The district did not convene an IEP team meeting to develop a functional behavioral assessment plan or develop appropriate behavioral interventions. The district did not determine whether a change in placement occurred as a result of 14 days during which the child was removed from school. The district did not provide services necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP during periods of suspension starting on the 11th day.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with a 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 the suspension of pupils.

State and federal laws govern procedures relating to the suspension of students. A child with a disability may be suspended for up to 5 days or for up to 10 consecutive days if a notice of expulsion has been sent to the child's parents. A district may suspend a child for more than 10 days in a school year. However, beginning on the 11th cumulative day in a school year that a child with a disability is removed from his or her current placement, the school district must provide those services that school personnel (for example, the school administrator or other appropriate school personnel) in consultation with the child's special education teacher determine to be necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. Also, either before or not later than 10 business days after first removing the child for more than 10 school days in a school year, the district, if the district had not conducted a functional behavioral assessment and implemented a behavioral intervention plan for the child before the behavior that resulted in the removal, must convene an IEP team meeting to develop an assessment plan. As soon as possible after developing the assessment plan and completing the assessments required by the plan, the district must convene an IEP team meeting to develop appropriate behavioral interventions to address that behavior and must implement those interventions.

Additionally, a series of short suspensions may create an exclusionary pattern that constitutes a change in placement. If a series of suspensions creates a pattern of exclusion, the district has denied the child a FAPE in violation of state and federal law. Factors to consider in determining whether the student has been excluded from school to such an extent that there has been a change in placement include the length of each suspension, the total amount of time that the student is excluded from school, and the proximity of the suspensions to each other. Such determinations must be made on a case-by-case basis.

During the current school year, the school district suspended the child for 14 days. Beginning with the 11th day of suspension, the district did not provide those services that school personnel (for example, the school administrator or other appropriate school personnel) in consultation with the child's special education teacher determined to be necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. The district did not conduct a functional behavioral assessment or implement a behavioral intervention plan for the child before the behavior that resulted in the removals of the child. Consequently, the district was required to, but did not, either before or not later than 10 business days after first removing the child for more than 10 days in a school year, conduct an IEP team meeting to develop an assessment plan. Finally the suspensions occurred in close proximity between September 10, 1999, and December 16, 1999. These suspensions may have created a pattern of exclusion that constitute a change in the child's educational placement. The district did not determine whether a change in placement occurred. There are violations in these regards relating to issue #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:

  1. has a current IEP in effect for every child with a disability (issue #1),
  2. follows required procedures when a child with a disability is subjected to disciplinary removals including suspension from school (issue #3), and
  3. conducts an IEP meeting to determine whether child A requires additional services because of the failure to provide FAPE consistent with a current IEP (issue #1) and because services were not provided to the child beginning on the 11th day of suspension in a school year (issue #3).

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, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
4/17/00
___________________________________________
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