IDEA Complaint Decision 00-032

On May 18 and June 26, 2000 (letter dated May 15, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Portage Community School District. This complaint alleges violations 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 relevant education records of the child, the district's response to the complaint, and documents submitted by the complainant. As part of the investigation, department staff spoke by telephone with the complainant and the district's director of pupil services.

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ISSUE #1:

During the spring semester of the 1998-99 school year, did the district fail to provide the complainant with proper notice of her child's educational placement within 90 days of referral?

ISSUE #2:

Did the district fail to provide the complainant with prior written notice of IEP team meetings held from March through May 1999?

APPLICABLE STATUTES AND RULES:

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

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(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under 115.777 or initiates a reevaluation of the child under  115.782 (4).

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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. * * *
(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.of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(h) Sources for parents to contact to obtain assistance in understanding this subchapter. (i) The rights specified in 115.78(4).

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34 CFR 300.505 Parental consent.

(a) General. (1) * * * [I]nformed parent consent must be obtained before--

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(ii) Initial provision of special education and related services to a child with a disability.
(2) Consent for initial evaluation may not be construed as consent for initial placement described in paragraph (a)(1)(ii) of this section.

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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, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance; and
(ii) Inform the parents of the provisions * * * relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Letter to (Notice) O'Connor, Office of Special Education Programs (OSEP), Department of Education, December 6, 1996, 26 IDELR 320.

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Specifically, paragraph (b) of 34 CFR 300.345 requires public agencies to notify parents of the purpose, time, and location of their child's IEP meeting, and who will be in attendance, early enough to ensure their participation at the meeting. In meeting their obligations to ensure parent participation at IEP meetings, however, it is OSEP's position that public agencies are not required to provide a * * * written prior notice to parents.

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Department of Public Instruction, Learning Support/Equity and Advocacy Information Update Bulletin 98.10, 1998

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29. When do we need to get parental consent for placement?


Parental consent is required only for initial placement [34 CFR 300.505(a)(1)(ii)]. Note that consent for initial evaluation may not be construed as consent for initial placement * * *.

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FINDINGS OF FACT:

On February 22, 1999, the complainant referred her child to the Portage Community School District for a special education evaluation. On that same date, the district provided the complainant with written notice of the referral and initial evaluation, and the complainant gave written consent for an initial evaluation of the child.

On March 18, 1999, the district convened an IEP team meeting for the purpose of evaluation and determination of the child's eligibility for special education and related services. The IEP team, including the complainant, determined that the child is a child with a disability eligible for special education and related services. The district contacted the complainant by telephone to schedule the March 18 IEP team meeting and informed the complainant of the purpose, time, and location of the meeting. The district did not inform the complainant who would attend the meeting. The district is unable to confirm whether it informed the complainant of her right to have other individuals with knowledge or special expertise about the child participate on the IEP team.

An IEP team meeting was held on March 22, and continued on March 26, 1999, to develop an IEP and determine educational placement for the child. Again, the district contacted the complainant by telephone to schedule the March 22 IEP team meeting and informed the complainant of the purpose, time, and location of the meeting. The district did not inform the complainant who would attend the meeting. The department is unable to determine if the district informed the complainant of her right to have other individuals with knowledge or special expertise about the child participate on the IEP team. The district provided the complainant with written notice of the March 22 IEP team meeting at the meeting.

The March 26 meeting was scheduled during the March 22 meeting with the complainant present. The complainant attended the March 26 IEP team meeting and invited a friend with knowledge of the child to participate at the meeting.

At the March 26 IEP team meeting, the district gave the complainant an Offer and Consent for Initial Placement form. This constituted notice of placement within 90 days of the referral. In its response to the complaint, however, the district acknowledged that it implemented the child's IEP without the complainant's written consent for the initial placement. The complainant did not sign the Offer and Consent for Initial Placement and took the form following the March 26 meeting. The district does not have a copy of the child's initial placement form.

On May 18, 2000, the child was suspended from school for four days for violating school rules. On May 19, 2000, the complainant called the school to discuss "accommodations" for her son during the suspension. During that telephone call, the district scheduled the time and location of an IEP team meeting for May 20, to review and revise, if appropriate, the child's IEP to address behavioral problems. The district did not state who would attend the meeting. The district gave the complainant written notice of the May 20 IEP team meeting when she arrived at the meeting.

The child began attending school in another local educational agency (LEA) at the beginning of the 1999-2000 school year and will do so for the 2000-2001 school year, as well.

CONCLUSION:

An LEA must appoint an IEP team for each child referred for special education services. The IEP team must evaluate the child and determine whether the child is a child with a disability. If so, the IEP team must develop an IEP for the child and determine the child's special education placement. The LEA must notify the parents of the child's educational placement within 90 days of the referral and must obtain the parents' consent for the child's initial placement.

In this case, the district notified the complainant of the child's educational placement within 90 days of the referral. There is no violation with regard to issue #1.

However, in its response to the department, the district acknowledged that it did not obtain the complainant's consent for initial placement before beginning to provide special education and related services to the child. An LEA must obtain informed parent consent prior to the initial provision of special education and related services to a child with a disability. Therefore, the district's admitted failure to obtain the complainant's consent to the child's initial placement prior to implementing the child's IEP constitutes a violation of the law. The district has already begun working with the department on a corrective action plan for this violation.

An LEA must inform a child's parents of the purpose, time, and location of their child's IEP team meeting, as well as who will be in attendance and the right to involve other participants with knowledge or special expertise about the child on the IEP team. This notice must be provided early enough to ensure the parents' participation at the meeting. The LEA's method of notification of IEP team meetings may be oral or written, or both, provided the notice contains the required information, and the LEA keeps a record of its efforts to contact the parents.

Here, the district contacted the complainant by telephone or in person to schedule the IEP team meetings held in March and May 2000, and the complainant attended each meeting. The district informed the complainant of the purpose, time, and location of the IEP team meetings. The district did not state who would attend the meetings. There is insufficient evidence to conclude that the district informed the complainant of her right to involve other participants with knowledge or special expertise about the child on the IEP team. There is a violation with regard to issue #2. Because the child now attends school in another LEA, the department will not direct the district to undertake corrective actions specific to the child.

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DIRECTIVE:

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

  1. the district obtains parental consent for a child's initial placement prior to the initial provision of special education and related services to a child with a disability; and
  2. the district provides proper prior notice to parents of IEP team meetings, in compliance with 34 CFR 300.345 (a)(1).

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 JSP
8/14/00
__________________________________________
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