IDEA Complaint Decision 00-023

On May 5, 2000 (letter dated May 3, 2000), a complaint was filed with the Department of Public Instruction by XXXXX of the Wisconsin Coalition for Advocacy 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. In investigating this complaint, department staff reviewed correspondence from the complainant, a special education supervisor, a principal, an assistant principal, a special education teacher, and relevant pupil records from the school district. Department staff also had discussions with the complainant, parent, special education supervisor, and an assistant principal.

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ISSUE:

the district fail to provide the following supplementary aids and services: "One-on-one assistant in physical education and English class due to behavior-coaching/cueing in structured and unstructured classes," as described in the student's March 27, 2000, IEP?

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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(16) "Supplementary aids and services" means aids, services and other supports that are provided in regular education classes or other education-related settings to enable a child with a disability to be educated with nondisabled children to the maximum extent appropriate.

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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 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 * * *

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34 CFR 300.342 When IEPs must be in effect.

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(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--
(1) An IEP--
(i) Is in effect before special education and related services are provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings described under 300.343.

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(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of--
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

* * *

34 CFR 300.343 IEP meetings.

(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP for a child with a disability.

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(c) Review and revision of IEPs. Each public agency shall insure that the IEP team--
1. Reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved.
2. Revises the IEP as appropriate to address--

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(iv) The child's anticipated needs.

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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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(3) 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--

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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 9, 20, and 31.

9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP?

* * * The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE * * *. If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating and impartial due process hearing * * *.

20. How frequently must a public agency conduct meetings to review, and, if appropriate, revise the IEP for each child with a disability?

* * * In general, if either a parent or a public agency believes that a required component of the student's IEP should be changed, the public agency must conduct an IEP meeting if it believes that a change in the IEP may be necessary to ensure the provision of FAPE.

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.

FINDINGS OF FACT:

The child whose education is the subject of this complaint received special education services at Mitchell Middle School during the 1999-2000 school year. On January 5, 2000, the district held an IEP team meeting and revised the child's IEP for the period beginning January 7, 2000, and ending January 7, 2001, in addition to determining the placement of the child in Mitchell Middle School. The parent and advocate participated in the IEP meeting.

On February 24, 2000, the IEP team met and revised the child's IEP by including a new behavioral goal and short-term objectives, along with a behavioral intervention plan. The child's IEP was revised for the period beginning February 24, 2000, and ending January 7, 2001. The parent and advocate participated in the IEP meeting. The February 24, 2000, IEP was implemented by the school district.

On March 27, 2000, the IEP team met to review the child's IEP. The parent and advocate participated in the IEP meeting. At this meeting, the IEP participants generally agreed that the child could benefit from additional support. A draft copy of an IEP for the child dated March 27, 2000, indicates that the child should receive the following supplementary aids and services and supports: "One-on-one assistant in physical education and English class due to behavior-coaching/cueing in structured and unstructured classes." There was not a consensus among the participants for this level of support for the child, as the local educational agency representative did not agree that the level of support described in the draft IEP was appropriate. Because consensus could not be reached at this IEP meeting, the participants adjourned the meeting. The district continued to implement the child's February 24, 2000, IEP that was in effect.

A continuation of the March 27, 2000, IEP team meeting was scheduled for April 17, 2000. The parent cancelled the IEP meeting because of the unavailability of her advocate, as the parent did not receive the invitation to the IEP meeting until Saturday, April 15, 2000, prior to the Monday, April 17, 2000, IEP meeting. On April 27, 2000, the complainant sent a letter to the principal of Mitchell Middle School suggesting the following dates for scheduling an IEP team meeting: May 3, May 4, or May 11, 2000. No IEP team meeting was scheduled to deal with the issue of providing support to the child in specific subject areas. Furthermore, the district did not send the parent a written notice that the district refused to change the provision of a free appropriate public education (FAPE) to the child and an explanation of why the district refused to make such a change. On May 17, 2000, the district sent the parent an invitation to a May 30, 2000, IEP team meeting that was scheduled to discuss the child's eligibility as a child with an emotional disturbance (ED) disability. On May 30, 2000, an IEP meeting was held to discuss primarily the child's eligibility as a child with ED. The IEP team did reach agreement at this meeting on the child's eligibility for ED services. However, the district has not reconvened an IEP team meeting to determine the child's level of support services since the March 27, 2000, IEP team meeting.

CONCLUSION:

A district meets its obligation to provide a free appropriate public education (FAPE) to a child with a disability in part by providing special education and related services, including supplementary aids and services or supports that will be provided for the child in conformity with a child's IEP. A school district must appoint an IEP team to review the child's IEP periodically, but not less than annually. The required participants of an IEP team meeting determine the appropriate education for the child. The IEP team is required to revise the IEP as appropriate to address the child's anticipated needs. The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. The district must implement the provisions in the IEP including the supplementary aids and services or supports that will be provided to the child.

At the March 27, 2000, IEP team meeting the participants agreed that the child could benefit from additional support, but the team could not reach consensus regarding the level of supplementary aids and services or support for the child and the meeting was adjourned. The district continued to implement the child's February 24, 2000, IEP that was in effect until January 7, 2001, even though the team agreed that the IEP did not meet all of the child's anticipated needs. The district was not obligated to implement the draft IEP prepared during the March 27, 2000, IEP team meeting because agreement was not reached regarding revision of the child's IEP. However, the district was obligated to reconvene an IEP team meeting in a timely manner to resolve the issue of support for the child in two subject areas in order to meet the child's anticipated needs. The district did not reconvene an IEP team meeting in a timely manner. In this regard the complaint is substantiated.

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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 district reconvenes an IEP team meeting in a timely manner to review/revise the child's IEP and the IEPs of other children as appropriate to address the child's and other children's anticipated needs or sends the parent or parents of other children with disabilities a written notice explaining the refusal to provide FAPE to the child and to other children.

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
7/11/00
_____________________________________________
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