IDEA Complaint Decision 00-017

On April 17 and May 19, 2000 (letters dated April 12 and May 12, 2000), a complaint was filed with the Department of Public Instruction by the XXXXX against the Racine Unified School District. 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. During this investigation, department staff reviewed the relevant education records of the children, written statements and documents submitted by district staff, and the district's response to the complaint. Department staff interviewed the director of special education, special education supervisors, speech and language pathologists, special education teachers, and school principals.

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ISSUE #1:

IEP teams determine the special education services to include in four children's 1999-2000 individualized education programs (IEPs) based upon the resources available at the applicable school building, rather than upon each child's needs?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

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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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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

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

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, page 12471

All services and educational placements under Part B must be individually determined in light of each child's unique abilities and needs, to reasonably promote the child's educational success. Placing children with disabilities in this manner should enable each disabled child to meet high expectations in the future.

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In all cases, placement decisions must be individually determined on the basis of each child's abilities and needs, and not solely on factors such as category of disability, significance of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. Rather, each student's IEP forms the basis for the placement decision.

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FINDINGS OF FACT:

Issue #1 concerns four children who, during the 1999-2000 school year, attended Gifford Elementary, Walden, Mack Center, and Wadewitz Elementary schools.

Information provided to the department by a special education supervisor and a teacher who was an IEP team participant indicates that the 1999-2000 IEP for the child from Gifford Elementary was based upon the child's needs, not building resources.

The 1999-2000 IEP for the child who attended Walden was developed at Horlick High School, where it was implemented at the beginning of the school year. The child then transferred to Park, and later in the school year to Walden, and his IEP was implemented in all three settings. There is no evidence that the IEP team developed the child's IEP based upon resources available at a particular school building.

The 1999-2000 IEP for the child who attended Mack Center was developed at Horlick High School. Based upon the child's history of truancy and older age than classmates, the IEP team included individualized computer learning and coursework in his IEP, as well as tutoring and other modifications. The IEP states that these services will be provided at the Mack Center, although the IEP team did not make the official placement determination. There is no evidence that the IEP team developed the child's IEP based upon building resources rather than the child's needs.

According to an IEP team participant for the child who attended Wadewitz Elementary, the IEP team thought that the child needed cognitive disabilities (CD) programming, as well as learning disabilities (LD) programming. The staff person stated that the IEP team did not include CD services in the child's IEP because the IEP team believed that the child would be placed at Wadewitz where CD programming is not available. At the request of a teacher and the child's parent, the district reconvened the IEP team in December 1999 and January 2000. In January 2000, the child's IEP was revised to include CD services, and the child was placed in another building where such programming is offered.

CONCLUSION:

A local educational agency (LEA) must provide each child with a disability a free appropriate public education (FAPE). An LEA meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a proper IEP. IEPs must be based on the individual needs of the child, rather than on the availability of special education services in a particular building.

The IEP team for the child who attended Wadewitz Elementary determined the services to include in the child's first 1999-2000 IEP based, in part, on the building resources rather than the child's needs. Issue #1 is substantiated with regard to that child. Because the district already reconvened the IEP team and the child's IEP was revised based upon the child's needs, the department will not issue a child-specific directive for this violation.

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ISSUE #2:

During the 1999-2000 school year, did the district improperly subject IEP teams' placement determinations for ten children to administrative approval?

ISSUE #3:

special education supervisors direct staff to alter the content of the same ten students' IEPs, including IEP cover sheets and IEP meeting invitations after IEP team meetings were completed?

ISSUE #4:

With regard to those same ten children, did the district fail to provide the parents of each child with notice of placement and a copy of the child's IEP prior to implementation of the IEP and placement?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(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:

* * *

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

* * *

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

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(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.
(c) Determine the special education placement for the child under 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 115.792 (2).

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Section 115.79, Wisconsin Statutes
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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Section 115.792, Wisconsin Statutes
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.

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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.

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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.

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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 or facility selected to implement the student's IEP--that comprise a placement decision under Part B.

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FINDINGS OF FACT:

Issues #2, #3, and #4 concern ten children with disabilities who attend Wind Point Elementary, Wadewitz Elementary, and Horlick High School.

In September 1999, the department conducted on-site compliance monitoring in Racine to review the district's implementation of state and federal special education laws. One of the implementation errors found by the department was that the district failed to ensure that IEP teams determined the placements of children with disabilities. By letter dated November 3, 1999, the department informed the district of this error and directed the district to take corrective actions to ensure that each placement determination is made at an IEP team meeting by a properly constituted IEP team. On December 9, 1999, the district submitted a corrective action plan (CAP) to the department listing various activities it would complete by December 2000 to correct its placement determination procedure. Because of the need for amendments, the department approved the CAP on May 10, 2000.

During this complaint investigation, the district's director of special education acknowledged to department staff that, during the 1999-2000 school year, IEP teams did not make placement determinations for children with disabilities in the district. Following IEP team meetings, children's IEPs were sent to special education supervisors who then determined the school building into which the child would be placed to receive services.

Because supervisors made the placement decisions, the case managers for eight of the children did not indicate on the IEP cover pages and/or IEP team meeting notices that placement was a purpose of the meetings. In six of those cases, special education supervisors returned the IEPs to the case managers with directions to check the placement determination box on the cover page and/or IEP team meeting notice. In two cases, supervisors told case managers to check the placement box in the future.

In addition, special education supervisors directed case managers to make substantive changes to four of the children's IEPs, such as including a least restrictive environment determination and adjusting or justifying the amount and frequency of services. In its response to the complaint, the district stated that special education supervisors review IEPs for compliance with state and federal special education laws and order corrections, as necessary. In one case, the supervisor directed the case manager to reconvene the IEP team to address the areas of concern. In the other three cases, the case managers were directed to review and revise the IEP and return it to the supervisor without an IEP team meeting.

The district's placement procedure resulted in delays in providing formal notice of placement to parents because building assignments were made after the IEPs were developed at IEP team meetings. For six of the ten children, the placement notices are dated later than the implementation dates stated on the IEPs. The district did not provide those parents with notice of placement and a copy of their child's IEP prior to IEP implementation.

CONCLUSION:

State and federal special education laws require LEAs to ensure that placement determinations for children with disabilities are made by IEP teams. 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.

The district acknowledged that, during the 1999-2000 school year, special education supervisors, rather than IEP teams, made placement determinations for children with disabilities. The district's procedure of having supervisors determine building placement after IEPs were developed resulted in confusion over whether IEP team meeting notices and IEP cover pages should indicate that placement is a purpose of the meeting. Consequently, supervisors ordered case managers to change these pages for six children, as well as make substantive changes to IEPs for three children without reconvening the IEP teams.

In addition, the district's placement procedure results in delays in providing formal notice of placement to parents and children because building assignments were made after the development of IEPs at IEP team meetings. For six of the children, the placement notices are dated later than the implementation dates stated on the IEPs. The district did not provide those parents with notice of placement and a copy of their child's IEP prior to IEP implementation. The complaint is substantiated with regard to issues #2, #3, and #4.

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ISSUE #5:

During the 1999-2000 school year, did the district fail to provide 21 children with disabilities with the amount and frequency of special education services specified in each child's IEP?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(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 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 supplementary aids and services to be provided to the child,

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31.

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.

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FINDINGS OF FACT:

This issue concerns the provision of special education services to 21 students: 8 at Wind Point Elementary; 5 at Walden, 4 at Olympia Brown Elementary; 2 at Wadewitz Elementary; and 2 at Mack Center.

In statements submitted by special education supervisors, the district acknowledged that four of the students who attended Wind Point did not receive the amount and frequency of speech and language (S/L) services required by their IEPs during the 1999-2000 school year. The district stated that the children did not receive the required S/L services because the district was unable to find substitutes to hire when two S/L pathologists took a medical leave and a leave of absence. In addition, the district stated that the assigned S/L pathologist did not provide the amount and frequency of required services because of case overloads.

According to the assigned S/L pathologist, the other four Wind Point children also did not receive the amount and frequency of services required by their IEPs. The S/L pathologist stated that he only provided services to the children once per week, instead of twice per week as required by their IEPs, until January 3, 2000, when a new S/L pathologist was hired. The three students assigned to the new S/L pathologist in January 2000 continued to receive fewer services than required by their IEPs because of frequent illnesses and medical leave taken by the new pathologist.

The district's response, statements submitted by supervisors, and interviews with district teaching staff indicate that two of the children at Walden and the two children at Wadewitz Elementary received the amount and frequency of special education services specified in their IEPs during the 1999-2000 school year. During interviews, district staff informed the department that three of the children at Walden did not receive the amount and frequency of supplementary aids and services and program modifications required by their 1999-2000 IEPs.

With regard to the four children at Olympia Brown Elementary, the department has determined that three of the children did not receive the amount and frequency of S/L services specified in their 1999-2000 IEPs. A S/L pathologist at the school informed the department that, during one week, she was unable to implement the S/L provisions of two of the children for two 30-minute sessions because a high-needs child was assigned to their group. The third child did not begin receiving S/L services until January 25, 2000, three weeks after the January 3 projected beginning date of his IEP. In addition, the child received services once per week, instead of three times per week as required by his IEP, from January 25 until February 14, 2000, when an additional S/L pathologist was hired.

Based upon the information contained in the complaint, the district was unable to identify and provide records for one of the children at the Mack Center. Therefore, the department is unable to make a determination with regard to that child. According to district staff, the other child at the Mack Center did not receive the transition services, including job readiness training, and program modifications required by his 1999-2000 IEP.

CONCLUSION:

An LEA must provide each child with a disability with FAPE. An LEA meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a proper IEP. It is the district's responsibility to ensure that its employees provide all services required by each child's IEP and that it has sufficient staff to provide the required services.

The district acknowledged that it failed to provide the amount and frequency of S/L services to four children at Wind Point Elementary, as required by their 1999-2000 IEPs. Based upon the evidence, the department concludes that four other Wind Point students and three children at Olympia Brown Elementary also did not receive the amount and frequency of S/L services required by their 1999-2000 IEPs. In addition, the department concludes that three children at Walden did not receive the supplementary aids and services and program modifications required by their 1999-2000 IEPs, and one child at the Mack Center did not receive transition services and program modifications required by his 1999-2000 IEP. Issue #5 of the complaint is substantiated with regard to those 15 children.

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DIRECTIVE:

The Racine Unified School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. IEP teams develop children's IEPs based upon each child's needs, not building resources (issue #1);
  2. the district conducts IEP team meetings for the ten children in issue #2 for the purpose of determining placement (issue #2);
  3. the placements of all children with disabilities are determined by IEP teams. The department is currently working with the district on this issue. Therefore, the department will consolidate its oversight of the district's CAP placement procedures with the ongoing compliance monitoring CAP (issues #2, #3, #4);
  4. the district does not order or allow staff to make substantive revisions to children's IEPs outside of the IEP team meeting process (issue #3);
  5. the district provides parents of children with disabilities with notice of placement and a copy of the IEP prior to implementation of the IEP and placement (issue #4);
  6. the district convenes IEP team meetings for the eight children at Wind Point, three children at Olympia Brown Elementary, three children at Walden, and one child at Mack Center who did not receive the amount and frequency of special education and related services required by their 1999-2000 IEPs for the purpose of determining whether those children need additional special education and related services to compensate for the periods of missed services. The department will advise the district which children from Olympia Brown, Walden, and Mack Center are affected by this directive (issue #5);
  7. the district provides all special education and related services, including S/L services, supplemental aids and services, and transition services, as required by IEPs to the eight children at Wind Point, three children at Olympia Brown Elementary, three children at Walden, one child at Mack Center, and to all children with disabilities in the district (issue #5);

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 the department has approved it.

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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 MJT
11/15/00
________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720