IDEA Complaint Decision 00-025

On May 12, 2000 (letter dated May 11, 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 relevant portions of the child's pupil records and the district's written response to the complaint. Also department staff interviewed the complainant, a district special services administrator and a district special education supervisor.

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ISSUE #1:

During the 1999-2000 school year, did the district fail to provide the related service of transportation consistent with a child's April 13, 2000, individualized education program (IEP)?

ISSUE #2:

At an IEP team meeting on April 13, 2000, did the district fail to include in a child's IEP a provision determined by the IEP team, that if the child attended summer school classes the child's IEP would be in effect?

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.

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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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(f) The projected date for the beginning of the services and modifcations described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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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. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under  118.51.
(2) NOTICE. The notice required under sub. (1)(b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take action.

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34 CFR 300.8 Free appropriate public education.

As used in this part, the term "free appropriate public education" means special education and related services that--

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(d) are provided in conformity with an IEP that meets the requirements of 300.340-300.350.

34 CFR 300.16 Related services.

(a) As used in this part, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.

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34 CFR 300.345 Parent participation.

(a) Public agency responsibility- general. Each public agency shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate * * *

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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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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 9

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 meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child's needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs. * * *

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. It is not appropriate to make IEP decisions based upon a majority "vote." 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 an impartial due process hearing. * * *

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DPI Information Update Bulletin 96.01 (March 1996)

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4. Who decides whether a child requires extended school year services in order to receive a free appropriate public education?

The participants in a meeting to develop the child's IEP¿must consider, as appropriate, whether a child needs extended school year services in order to receive a free appropriate public education.

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20. Does participation by a child with exceptional educational needs in a permissive summer school class require an IEP?

No. A child's IEP includes only those services required for the child to receive a free appropriate public education. If a child needs extended school year in order to receive a free appropriate public education, such services must be articulated in the child's IEP. If a child does not require extended school year in order to receive a free appropriate public education, the IEP should not include the child's participation in permissive summer school classes. Making summer school classes available to children with exceptional educational needs does not relieve a school district of its obligation to consider, as appropriate, and, if necessary, to provide extended school year services. Also see question #21. [Emphasis in original.]

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a third grader with a disability. On July 26, 1999, a district individualized education program (IEP) team developed the child's 1999-2000 school year IEP. The beginning date of the IEP is August 25, 1999, and the ending date is August 25, 2000. The IEP requires transportation as a related service and states: "Transportation - Daily - Corner." The child was provided daily corner transportation on a bus. The child's family moved out of the child's elementary school transportation region in January 2000. The district transportation policy states that when a student moves outside the school transportation region, transportation will not be provided unless no other school can accommodate the child. The child's mother wanted to have the child continue at his elementary school and arranged for him to go daily to his aunt's house to catch a corner route bus to school or be transported by family members.

On April 13, 2000, an IEP team meeting was held to develop the child's annual IEP. The child's mother participated in the IEP team meeting with a parent advocate. At this meeting the IEP team determined that the child required transportation as a related service: The IEP states: "Transportation - door - door - school and home." The IEP team determined that the child did not need extended school year (ESY) services. The parent advocate requested at the IEP team meeting that it be recorded on the IEP that the child's IEP would be in effect if the child attended summer school. This statement was not recorded on the IEP. The IEP team discussed placement options including the fact that the related service of door-to-door transportation was not available for the child to attend the child's current school because the child had moved outside of the school's transportation region. The IEP team determined that a second meeting would be needed in order to determine placement. The district continued to provide special education and related services to the student based on his IEP for August 25, 1999, through August 25, 2000.

On May 1, 2000, the child's mother informed the school that another meeting to determine placement would not be necessary because the family was moving out of the district. Nonetheless, on May 25, 2000, an IEP team meeting was held to review and revise the child's IEP and determine placement. The child's mother participated in the IEP team meeting with a parent advocate. At this meeting, the team determined that the child's IEP developed on April 13, 2000, would be implemented at a new elementary school in the district with a projected date of implementation on May 26, 2000. On May 25, 2000, the child's mother was provided a notice of placement and a copy of the April 13, 2000, IEP. The IEP indicates that the child does not need extended school year services and explains the reasons for the determination. The notice of placement indicates that the services will be provided at a new school.

The child's parent did not enroll the child in the school which the placement offer indicates was to have been his placement for the final two weeks of the school year and he continued to attend the school he had attended all year. The parent advocate, in a letter dated June 2, 2000, to the department indicates the parent's disagreement with the placement offer and her intention for the child to remain in the school he had been attending. During the 1999-2000 school year, the child did not attend the placement offered by the district on May 25 based on the April 13, 2000, IEP. Between May 26, 2000, and June 9, 2000, the district continued to provide special education and related services to the student based on his IEP for August 25, 1999, through August 25, 2000. The parent advocate has stated that the parent no longer resides in the district. Correspondence sent by the department to the parent at her former address has been returned and telephone calls to her are answered with a message that the telephone number has been disconnected. The district notified the parent on June 5, 2000, that in the fall her child would be attending the school determined by the IEP team. The parent has not notified the district that her child will not attend school in the district in the fall.

CONCLUSION:

A school district must make available a free appropriate public education (FAPE) to each child with a disability. The district must develop and implement an IEP that specifies the special education and related services to be provided to meet the needs of a child with a disability. The IEP team must consider, as appropriate, whether a child needs extended school year (ESY) services in order to receive a FAPE. If an IEP team determines that a child does not need ESY services in order to receive a FAPE, the IEP is not implemented during the summer. A district periodically must review and, as necessary, revise a child's IEP. Generally, the IEP team determines the school building or facility where the child's IEP will be implemented. Neither school districts nor parents are permitted unilaterally to change the determination of an IEP team.

Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs. 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.

 

During the 1999-2000 school year the district provided FAPE to the child whose education is the subject of this complaint based on his August 25, 1999, through August 25, 2000, IEP. On April 13, 2000, an IEP team meeting was held to review and revise the child's IEP. On May 25, 2000, an IEP team meeting was held to review and revise the child's IEP and determine placement. The child's mother participated in the IEP team meetings with a parent advocate. The IEP team determined that the child did not need extended school year (ESY) services. The IEP indicates that the child does not need extended school year services and explains the reasons for the determination. The IEP team attempted to reach consensus at IEP team meetings and provided the parent with prior written notice of the district's proposals regarding the child's educational program. The parent advocate requested that it be recorded on the IEP that the child's IEP would be in effect if the child attended summer school. This statement was not recorded on the IEP. Because the team had concluded that the child does not need ESY services this summer, the team was correct in deciding not to indicate on the IEP that the child's IEP would be in effect if the child attended summer school. Issue #2 is not substantiated.

The IEP team determined that the child's IEP developed on April 13, 2000, including the related service of door-to-door transportation, would be implemented at a district elementary school different from the one the child was then attending. The projected date of implementation was May 26, 2000. On May 25, 2000, the child's mother was provided a determination and notice of placement and a copy of the April 13, 2000, IEP. The district made a placement available to implement the child's April 13, IEP. The parent did not agree with the decision, she did not enroll her child in the new school and he never attended the new placement. For the final two weeks of the school year between May 26, 2000, and June 9, 2000, the district continued to provide special education and related services to the student based on his IEP for August 25, 1999, through August 25, 2000. There is a technical violation in this regard. The district has notified the parent that a placement is available for the child at the beginning of the next school year. The child is no longer a resident of the district. Under these particular circumstances, corrective action is not warranted.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. 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
8/8/00
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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