IDEA Complaint Decision 00-033

On May 18, 2000 (letter dated May 16, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Adams-Friendship Area 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 and relevant education records submitted by the district. Department staff interviewed the complainant, the district's pupil services director, a special education teacher, and the director of the Bridges for Youth Program.

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ISSUE #1:

the district fail to implement provisions of the child's individualized education program (IEP) because of a lack of qualified personnel during the 1999-2000 school year?

ISSUE #2:

the district fail to respond in a timely manner to the parents' requests for a meeting of the IEP team for their child?

APPLICABLE STATUTES AND RULES:

Section 115.28, Wisconsin Statues
General duties.

The state superintendent shall:

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(7) LICENSING AND CERTIFICATION OF TEACHERS, ETC. (a) License all teachers for the public schools of the state, make rules establishing standards of attainment and procedures for the examination and licensing of teachers within the limits prescribed in 118.19 (2) and (3), 118.192 and 118.195, prescribe by rule standards and procedures for the approval of teacher preparatory programs leading to licensure, file in the state superintendent's office all papers relating to state teachers' licenses and register each such license.

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(c) Subject to 118.19 (4m), license and make rules for the examination and licensing of persons, including teachers, employed to provide publicly funded special education and related services, as those terms are defined in 115.76 (14) and (15).

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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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(d) Ensures that children with disabilities who are enrolled in private schools and facilities are provided special education and related services, in accordance with individualized education programs, at no cost to them or to their parents, if such children are placed in, or referred to, such schools or facilities by a local educational agency to satisfy the requirements of this subchapter or applicable federal law.

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Section 115.78, Wisconsin Statutes
Individualized education program team; timeline

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(1m) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777.

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

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(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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(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.
2. Revise the individualized education program as appropriate * * *.

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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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Section 121.02, Wisconsin Statutes
School district standards.

(1) Except as provided in 118.40(2r)(d), each school board shall:
(a) 1. Ensure that every teacher, supervisor, administrator and professional staff member holds a certificate, license or permit to teach issued by the department before entering on duties for such position.

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34 CFR 300.400 Applicability of 300.400--300.402.

Sections 300.401-300.402 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.

34 CFR 300.401 Responsibility of State educational agency.

Each SEA shall ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency--
(a) Is provided special education and related services--
(1) In conformance with an IEP that meets the requirements of 300.340-300.350; and (2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs (including the requirements of this part);

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PI 3.01, Wisconsin Administrative Code
Definitions.

In this chapter:

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(44) "Teacher" means a licensed professional school employe whose work includes the exercise of any educational function for compensation including instructing pupils or administering, directing, or supervising any educational activity.
(45) "Teacher aide" means a person who performs a variety of duties under the direct supervision of a licensed teacher, except professional teaching responsibilities such as diagnosing educational needs, prescribing teaching and learning procedures, and evaluating the effects of teaching.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 20

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

Although the public agency is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a child with a disability have the right to request an IEP meeting at any time. For example, if the parents believe that the child is not progressing satisfactorily or that there is a problem with the child's current IEP, it would be appropriate for the parents to request an IEP meeting.

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The legislative history of Public Law 94-142 makes it clear that there should be as many meetings a year as any one child may need (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)). Public agencies should grant any reasonable parent request for an IEP meeting. For example, if the parents question the adequacy of services that are provided while their child is suspended for short periods of time, it would be appropriate to convene an IEP meeting.

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.

If a parent requests an IEP meeting because the parent believes that a change is needed in the provision of FAPE to the child or the educational placement of the child, and the agency refuses to convene an IEP meeting to determine whether such a change is needed, the agency must provide written notice to the parents of the refusal, including an explanation of why the agency has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student.

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34 CFR Part 300, Attachment 1¿Analysis of Comments and Changes, Responsibility of SEA (300.401), 64 FR 12600

Children with disabilities who are placed by public agencies in private schools are entitled to receive FAPE to the same extent as they would if they were placed in a public school. FAPE includes not just the special education and related services that a child with a disability receives, but also includes an appropriate preschool, elementary and secondary school education in the State involved and must be provided in conformity with the child's IEP.

Because of these changes in the statute and the confusion that has existed over whether all aspects of the education provided by private schools to publicly-placed children with disabilities had to meet the standards that apply to public agencies, a change should be made in the regulations to ensure that children who are publicly-placed in private schools receive services consistent with the SEAs' statutory obligation to ensure that FAPE is provided. SEAs must ensure that public agencies that place children with disabilities in private schools as a means of providing FAPE make sure that the education provided to those publicly-placed children with disabilities meets all standards that apply to educational services provided by the SEA and LEA that are necessary to provide FAPE.

With respect to personnel standards, for example, this would mean that all personnel who provide educational services (including special education and related services and non-special education services) meet the personnel standards that apply to SEA and LEA personnel providing similar services.

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FINDINGS OF FACT:

The student whose education is the subject of this complaint was determined to be a child with a disability in March 1999. On June 7, 1999, a meeting, including the parent, the student, a Wisconsin Coalition for Advocacy (WCA) parent advocate, the special education director, and the director of the Bridges for Youth (BFY) program, was held to discuss the youth's progress and the BFY program as a placement option for the 1999-2000 school year. At this meeting, the BFY program director explained the role and function of the program. During the meeting, the parent and student visited the BFY program.

BFY is a private non-profit social service agency program located in space leased from the district at the district administrative building. It was established to provide instruction to youth receiving services from the county, but the district has contracted with the program to provide educational services to students who have been expelled from school. Although her son was not expelled, the parent was looking for an alternative setting for her child. The BFY program director indicated that her staff, referred to as tutors, assisted students with educational material provided by school district staff. In a statement to the department, the special education director indicated that curriculum planning and evaluation of completed work is done by certified staff from the school district. The BFY program director and her staff provide classroom supervision. BFY staff was provided textbooks and assignments by the school district staff and the BFY staff instructed students. BFY had one certified teacher from the beginning of the 1999-2000 school year until the Thanksgiving holiday in 1999. For the remainder of the school year, the BFY program did not employ a certified teacher. Following this staff reduction, the hours of providing instruction to the student were reduced from five hours a day to two and one-half hours a day. The district maintains that during the June 7, 1999, meeting it was made clear to the parents that the BFY program did not employ certified teachers. Further, the district maintains that the parents requested placement in the program and that throughout most of the school year she expressed satisfaction with her son's response to the program.

The youth's initial IEP dated March 22, 1999, states that "Special education teacher for all classes except advisor group, art, and physical education." It also includes a notation that reads, in part, "August 1999-parent requests attendance at BFY instead of Adams-Friendship Middle School. Sp. Ed. Consultation services-weekly, daily, if needed." This notation on the IEP also indicates that the student's school day was shortened to 9:00 to 2:00 beginning in August 1999. A notice of placement dated August 15, 1999, indicates that the youth's IEP developed on March 22, 1999, will be implemented at the BFY program. This notice also states that the BFY staff would provide individual instruction and tutoring. The youth began attending the program on August 25, 1999, and remained in the program during the entire 1999-2000 school year.

On January 24, 2000, the IEP team reviewed and revised the IEP, and included a Technology Survey class at the high school. After this meeting, the special education teacher began working one-on-one with the complainant's son on a weekly basis for 10 to 15 minutes. At this time, the student's school day was increased from two and one-half hours to five hours a day. On February 7, 2000, an informal meeting was held to resolve other school issues.

On March 1, 2000, a parent advocate affiliated with a second advocacy organization, Parent Education Project of Wisconsin (PEP), called the special education director about parent concerns with the BFY program. The special education director called the parent on that day and offered to meet as an IEP team to review the IEP and parent concerns. The director sent letters to the parents on March 6, and April 3, 2000, summarizing the student's program and offering to convene a meeting of the IEP team. On April 7, 2000, the WCA parent advocate sent the district a letter indicating that the parents were satisfied with the BFY program. On May 10, 2000, the PEP parent advocate left a message with the district administrator and the special education director indicating that the district was in violation of the law due to the use of BFY as a placement for students. She also alleged that the district did not respond to the parent's request for an IEP team meeting, which was made on or about April 27, 2000. The special education director called the parent on May 10, 2000, to discuss the concerns and, subsequently, scheduled an IEP team meeting for June 5, 2000.

CONCLUSION:

When a school district places a child with a disability, the district must ensure that the child's education meets the standards that apply to education provided by the school district. Among the applicable standards is the statute requiring each school board to ensure that every teacher holds a certificate, license or permit to teach issued by the department. State law requires that only appropriately licensed teachers perform professional teaching responsibilities including supervising any educational activity.

The complainant alleges that the district failed to implement provisions of her son's IEP because of a lack of qualified personnel during the 1999-2000 school year. Following the Thanksgiving holiday to January 24, 2000, the student received only two and one-half hours of instruction per day provided exclusively by unlicensed BFY staff. The district did not ensure that the educational activities provided by these BFY staff were supervised by licensed teaching staff. After January 24, 2000, a licensed special education teacher provided instruction for 10 to 15 minutes one time per week. Unlicensed BFY staff continued to provide the vast majority of the student's instruction for the remainder of the school year without the supervision by licensed teaching staff. When a district places a child with a disability, it must ensure that the program complies with state requirements including the requirement that professional teaching responsibilities be carried out by or supervised by a teacher who is licensed by the department. After the Thanksgiving holiday until the end of the school year, the district did not ensure that a licensed teacher supervised educational activities delivered to the youth at the BFY program by unlicensed staff. There is a violation relating to issue #1.

The law requires a school district to hold IEP team meetings periodically to review a child's IEP but not less than annually. Parents may request an IEP meeting at any time. A school district should respond to any reasonable request from a parent for a meeting to review and, if necessary, revise the child's IEP. If the district denies the parent's request for an IEP meeting, the district must provide the parent with a notice of refusal.

The complainant alleges that the district failed to honor in a timely manner the parent's request for an IEP team meeting, made beginning on or about April 27, 2000. In early March and in early April, the director of special education offered to convene a meeting of the IEP team. There is conflicting evidence regarding when the parent may have requested an IEP team meeting. However, the special education director called the parent on May 10, 2000, promptly after learning that she had concerns regarding her child's placement, and an IEP meeting was scheduled for June 5, 2000. The department concludes that the district did not refuse the parent's request for a meeting of the IEP team, and arranged a meeting once it learned of the parent's concerns. There is no violation in regard to issue #2.

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DIRECTIVE:

The Adams-Friendship Area School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district, when placing a child with a disability, ensures that the child receives instruction that meets the standards that apply to education provided by the district, including the standard relating to supervising any educational activity performed by unlicensed individuals.

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.

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
10/5/00
__________________________________________
Michael 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