On March 14, 2000 (letter dated March 10, 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. As part of this investigation, department staff reviewed documents and relevant education records of the student submitted by the district and the complainant. In addition, phone interviews were conducted with the FACETS advocate and school diagnostician.
APPLICABLE STATUTES AND RULES:
Section 115.76, Wisconsin Statutes
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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(14) "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services;
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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.
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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:
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(c) A statement of the special education and related services and supplemental 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 * * * .
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34 CFR 300.24 Related Services.
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(b) Individual terms defined. The terms used in this definition are defined as follows:
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(14) Speech-language pathology services includes--
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language impairments;
(iii) Referral for medical or other professional attention necessary for the habilitation of speech or language impairments;
(iv) Provision of speech and language services for the habilitation or prevention of communicative impairments; and
(v) Counseling and guidance of parents, children, and teachers regarding speech and language impairments.
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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:
Letter to Assistant Professor of Special Education, Division of Education, State University of New York, Office of Special Education Programs (OSEP), U.S. Department, September 20, 1990, 17 EHLR 222.
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Any State or local educational agency policy or procedure which interferes with the authority of the IEP team to determine a child's need for related services in a manner consistent with the requirements of the EHA-B would be in conflict with Federal law. A related service must be included in a student's IEP, and provided as part of FAPE, if that service is a "supportive service [which is] required to assist a handicapped child to benefit from special education." CFR 300.13 (a). Although State and local educational agencies may develop criteria or guidelines which they use to assist them in determining whether a specific related service will be included in a student's IEP, those guidelines must be written and implemented in a manner which is fully consistent with the requirements of the EHA-B. In other words, those guidelines cannot have the effect of denying a related service, which is "required to assist a handicapped child to benefit from special education." The determination as to whether a child requires a specific related service must be made in a meeting held to develop the student's IEP, and must be based upon that student's unique needs.
Therefore, any guideline or policy which, as written or implemented, acts as a categorical denial of related services to all students whose language or motoric skills are as delayed as their general developmental level, would be inconsistent with the requirements of the EHA-B. Such a categorical limitation on services would conflict with the EHA-B requirement that the services to be included in each student's IEP be determined on an individual basis. * * *
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FINDINGS OF FACT:
The child whose education is the subject of this complaint is a 16-year-old student with a cognitive disability (CD) who attends Milwaukee Public Schools (MPS). On November 4, 1999, the IEP team convened to review the annual IEP and the reevaluation data, determine continuing eligibility, and offer placement. The parent and advocate attended the meeting. The IEP team determined that the student is a child with a disability and is eligible for special education services because of a CD. The IEP team also determined that the child did not have a speech and language impairment and did not require speech and language services. Currently, the child is not receiving speech and language services as special education or as a related service. The IEP team considered speech and language as a related service by applying the district's existing speech and language policy guidelines.
At the time of the IEP meeting on November 4, 1999, the MPS speech and language policy guidelines stated that when determining eligibility for speech and language services both program services and related services were "eligibility governed." Specifically, the guidelines required that a child must first meet the eligibility criteria for a speech and language impairment in order to receive speech and language services, and second, be able to benefit from speech and language services. The guidelines indicate that a child whose speech and language development is commensurate with general intellectual abilities would not benefit and, therefore, would not receive speech and language services. The IEP team applied these guidelines and determined that the child did not meet eligibility criteria and that he would also not benefit from speech and language services. The speech language pathologist indicated that the discussion of related service versus special education did not seem appropriate because his skills were "where they should be" (i.e., commensurate with his general intellectual ability). The parent and an advocate believed the child required speech and language services.
The district has promulgated new guidelines describing how IEP teams are to determine a child's need for speech and language services as a related service. The new guidelines require individual determinations of whether the child needs speech and language services in order to benefit from special education and do not require that a child meet state eligibility criteria for a speech and language impairment in order to receive this related service.
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 and related services in conformity with an IEP. The IEP must be based upon the child's unique needs, not on his or her disability. Related service must be included in a student's IEP, and provided as part of FAPE, if they are required to assist a child with a disability to benefit from special education. A policy or guideline, as written or implemented, that acts as a categorical denial of related services to a category of students would conflict with the IDEA requirement that services are to be included in each student's IEP based on an individual determination.
On November 4, 1999, the IEP team considered speech and language as a related service by applying the district's existing speech and language policy guidelines. The district's criteria for receiving speech and language services required that a child meet the eligibility criteria for a speech and language impairment, and the child have a need for speech and language service. These criteria indicate that a child is not eligible for services if the child's speech and language functioning is commensurate with the child's intellectual ability.
The policy applied by the district on November 4, 1999, categorically denied speech and language services to all students whose speech and language development is commensurate with general intellectual ability. The district's IEP team used this impermissible policy when it determined not to provide speech and language services as a related service. There is a violation relating to the issue in the complaint. However, the district has modified its guidelines for determining when a child needs speech and language services as a related service. The new guidelines permit IEP teams to determine that a child needs speech and language services in order to benefit from special education.
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 informs staff of the policy guideline changes related to the receipt of speech and language services as a related service and applies the correct analysis when determining whether a child is eligible for speech and language as a related service. The district has scheduled an IEP team meeting on October 31, 2000, to review and revise the child's IEP and to determine whether or not the child needs speech and language as a related service. The district must apply the proper standard when determining if the child needs speech and language as a related service (i.e., Does the child need speech and language services to benefit from his special education? If the child requires speech and language as a related service, the IEP team must also consider whether additional services are needed due to the delay in providing speech and language services).
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 products 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 the department has approved it.
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.
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy