IDEA Complaint Decision 00-009

On March 3, 2000 (letter dated March 3, 2000), 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 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 an assistant principal, a special education supervisor, two special education teachers, an attendance secretary and the child's grandmother.

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ISSUE #1:

the district fail to provide services consistent with the child's IEP between August 1999 and March 3, 2000?

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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Section 115.787, Wisconsin Statutes
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.
(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:
(a) A statement of the child's present level of educational performance, including how the child's disability affects the child's involvement and progress in the general curriculum or, for a preschool child, as appropriate, how the disability affects the child's participation in appropriate activities.
(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.
(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to do all of the following:
1. Advance appropriately toward the annual goals.
2. Be involved and progress in the general curriculum in accordance with par. (a) and participate in extracurricular and other nonacademic activities.
3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.
(d) An explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities.

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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 * * *.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31 and 35

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP. * * *

35. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members ( 300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

The amount of a special education or related service to be provided to a child may be stated in the IEP as a range...only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior¿.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 15-year old child with a disability who attends a middle school in the Milwaukee Public Schools. On July 19, 1999, the district conducted an individualized education program (IEP) team meeting to review and revise the child's IEP. The child and the child's grandmother participated in the meeting. The IEP developed by the team at that meeting covered the period July 19, 1999, to July 19, 2000. The IEP includes a statement of the child's present level of educational performance and annual goals with benchmarks or short-term objectives. The statement of services describes the special education services to be provided to the child as: "Direct Instruction, Resource Assistance, ex. Participation in Inclusion Classes, ex ed Vocational Exploration." The frequency of these services is noted to be "daily, " the location is to be "Integrated and Special education Classroom" and the duration is "1999-2000 school year." The IEP does not indicate that the child is to receive supplementary aids, services and other supports provided to or on behalf of the student in regular education or other educational settings; nor does it include program modifications or supports for school personnel that will be provided. Also the IEP contains no explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum, and in extracurricular and other nonacademic activities.

Between August 25, 1999, and December 10, 1999, the child was provided special education services on a resource-consultation basis. A special education teacher never actually worked with the child. The special education teacher was in charge of monitoring the child's IEP and being a resource to the regular education teachers. Between December 10, 1999, and March 3, 2000, the child was assigned to a different special education teacher. During this time period the child received instruction in a self-contained special education classroom 6 hours each day.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education, related services, and supplementary aids and services in conformity with a proper IEP. The IEP must include a statement of the child's present level of educational performance and annual goals with benchmarks or short-term objectives. The IEP must specify special education, related services, and supplementary aids and services to meet the child's needs. The IEP must contain an explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum, and in extracurricular and other nonacademic activities.

This child's IEP includes a statement of the child's present level of educational performance and annual goals with benchmarks or short-term objectives. The IEP does not specify special education, related services, and supplementary aids and services to meet the child's needs. The IEP provides that the child will receive services in an inclusion program, and in a special education classroom. The IEP does not describe the nature or extent of these services or the degree to which the student will not participate with nondisabled children in regular classes, in the general curriculum, and in extracurricular and other nonacademic activities. The IEP contains no information regarding supplementary aids, services, and other supports provided to or on behalf of the student in regular education or other educational settings. The IEP also does not contain program modifications or supports for school personnel that will be provided, although during the period August 25 to December 10, 1999, the special education teacher did provide consultation to the regular education teacher. The child received no direct special education services during this period. From December 10, 1999, to March 3, 2000, the child received services in a self-contained classroom 6 hours each day.

Between August 25, 1999 and March 3, 2000, based on the incomplete statement of services and the absence of other required information in the IEP, the child received services ranging from no direct service to self-contained special education instruction for 6 hours a day. The child's IEP does not clearly specify the amount of resources and does not identify the circumstances under which the regular or special education teacher should deem it necessary that the child be provided resource assistance or other services. There are violations in these regards relating to issue #1.

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ISSUE #2:

the district deny a child with a disability a free appropriate public education (FAPE) by repeatedly suspending 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.

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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 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).

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(d) FAPE for children suspended or expelled from school.

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(2) In the case of a child with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must--
(i) Provide services to the extent 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, if the removal is--
(A) Under the school personnel's authority to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under  300.519(b) ( 300.520((a)(1))¿.

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(3)(i) School personnel, in consultation with the child's special education teacher, determine the extent to which services are 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 if the child is removed under the authority of school personnel to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under 300.519 ( 300.520(a)(1)).

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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--

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(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.

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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).

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FINDINGS OF FACT:

Between August 25, 1999 and March 3, 2000, the district suspended the child for a total of 10.5 days. No suspension was for more than five consecutive days. The student was suspended from school on the following dates:

August 31, 1999,December 10, 1999January 12, 2000
November 2,1999December 13, 1999January 13, 2000
December 1, 1999December 14, 1999February 17, 2000
December 2, 1999January 11, 2000 

The district did not determine whether a change in placement occurred when disciplinary removals of the child exceeded 10 days in the school year. 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 the removal which exceeded 10 days in the school year. The district did not conduct an IEP team meeting to develop a functional behavioral assessment and a behavior intervention plan for the child.

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.

During the current school year, the school district suspended the child for 10.5 days. 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 unless the suspension would result in a change of placement. Factors to consider in determining whether disciplinary removals in excess of 10 cumulative school days in a school year constitute 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. In this case, the district did not make this determination before removing the student in excess of 10 cumulative school days.

Further, 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 during disciplinary removals that exceed 10 cumulative school days in a school year. The district failed to provide such services in this case.

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.

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. There are violations in these regards relating to issue #2.

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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:

  1. the amount of special education services to be provided to a child and other required components are stated in the IEP with sufficient particularity to identify the district's level of commitment of resources and to inform staff of their responsibilities, including identification of the specific circumstances under which a particular service will be provided; (Issue #1)
  2. required procedures are followed when a child with a disability is subjected to disciplinary removals including suspension from school; (Issue #2)
  3. an IEP team meeting is conducted for the child to develop a proper IEP with all required components (Issues #1 and #2) and to determine whether the child requires additional services because of the failure to provide FAPE consistent with a proper IEP.

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
5/2/00
____________________________________________
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