IDEA Complaint Decision 00-037

On June 2, 2000 (letter dated June 2, 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. As part of this investigation, department staff reviewed documents and relevant education records of the student submitted by the district and the complainant and spoke with a district speech pathologist.

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ISSUE #1:

the district improperly determine whether the child is a child with a disability by reason of a speech and language impairment?

 

ISSUE #2:

the district improperly deny the consideration of speech and language services as a related service?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statues
Definitions.

In this subchapter:

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:

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3. Speech or language impairments.

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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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(14) "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services * * * .

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Section 115.77, Wisconsin Statues
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:
(a) Evaluate the child under 115.782 to determine the child's eligibility for special education and related services and the educational needs of the child.

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Section 115.782, Wisconsin Statutes
Evaluations.

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(3) DETERMINATION OF ELIGIBILITY FOR SPECIAL EDUCATION. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability. * * *

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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 supplemental 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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Wisconsin Adminstrative Code, Section PI 11.35
Eligibility criteria.

(1) STANDARDS. Children shall be determined to have a handicapping condition who have been identified, evaluated and classified as handicapped pursuant to this section. * * *

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(2) HANDICAPPING CONDITION.

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(e) Speech and language handicaps. 1. Speech and language handicaps are characterized by a delay or deviance in the acquisition of prelinguistic skills, or receptive skills or expressive skills or both of oral communication. The handicapping condition does not include speech and language problems resulting from differences in paucity of or isolation from appropriate models.
2. Special consideration include:
a. Elective or selective mutism or school phobia shall not be included except in cooperation with programming for the emotionally disturbed.
b. Documentation of a physical disability resulting in a voice problem, e.g., nodules, cleft palate, etc., or an expressive motor problem, e.g., cerebral palsy, dysarthria, etc., shall not require the determination of a handicapping condition in speech and language.

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34 CFR 300.7 Child with a disability.

(a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with 300.530--300.536 as having * * * a speech or language impairment * * * .

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(2) * * * (ii) If, consistent with 300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.

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(c) Definitions of disability terms. The terms used in this definition are defined as follows:

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(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance.

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34 CFR 300.24 Related Services.

(a) General. 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-language pathology and audiology services * * * .

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Letter to Assistant Professor of Special Education, Division of Education, State University of New York, Office of Special Education Programs (OSEP), U.S. Department, September 20, 1990, 17 EHLR 222.

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Any State or local educational agency policy or procedure which interferes with the authority of the IEP team to determine a child's need for related services in a manner consistent with the requirements of the EHA-B would be in conflict with Federal law. A related service must be included in a student's IEP, and provided as part of FAPE, if that service is a "supportive service [which is] required to assist a handicapped child to benefit from special education." CFR 300.13 (a). Although State and local educational agencies may develop criteria or guidelines which they use to assist them in determining whether a specific related service will be included in a student's IEP, those guidelines must be written and implemented in a manner which is fully consistent with the requirements of the EHA-B. In other words, those guidelines cannot have the effect of denying a related service, which is "required to assist a handicapped child to benefit from special education." The determination as to whether a child requires a specific related service must be made in a meeting held to develop the student's IEP, and must be based upon that student's unique needs.


Therefore, any guideline or policy which, as written or implemented, acts as a categorical denial of related services to all students whose language or motoric skills are as delayed as their general developmental level, would be inconsistent with the requirements of the EHA-B. Such a categorical limitation on services would conflict with the EHA-B requirement that the services to be included in each student's IEP be determined on an individual basis. * * * (emphasis added)

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a seven-year-old student with a disability who attends Milwaukee Public Schools (MPS). On October 25, 1999, an IEP team met to review the evaluation results for the complainant's child related to academic functioning and speech and language skill levels. Because of concerns regarding the child's potentially high lead levels, this meeting was scheduled to reconvene. The parent and advocate attended both meetings.

On November 22, 1999, the IEP team reconvened to review the evaluation data, determine continuing eligibility, review and revise the IEP, and determine educational placement. The IEP team determined that the child is a child with a disability due to an other health impairment (OHI) and that the child no longer was a child with a disability by reason of a speech and language impairment. The evaluation report states that the child does not meet eligibility criteria for a speech and language impairment because "[t]his student does have relative weaknesses in the speech and language area, but overall functioning is commensurate with the student's measured intellectual level." The team also concluded that the child is not a child with a cognitive disability or a learning disability. The team determined that the child did not require speech and language services as a related service based on application of MPS's existing speech and language policy guidelines.

The complainant disagreed with the findings regarding her child's dismissal from speech and language services. The complainant requested additional evaluations in speech and language and academic skill areas. The district conducted the additional evaluations and convened an IEP team meeting on May 30, 2000, to discuss the results of the evaluations, determine eligibility, review and revise the IEP, and determine educational placement. The IEP team concluded that the child is not a child with a disability by reason of a speech and language impairment because "[t]his student does have relative weaknesses in the speech and language area, but overall functioning is commensurate with the student's measured intellectual level." The IEP team, however, determined that the student continues to be eligible for services under OHI. The IEP team also determined that the student is a child with a cognitive disability and requires speech and language services as a related service. The decision to provide speech and language services was based on revised MPS speech and language policy and on the team's determination that the child needed the services in order to benefit from his special education because he has difficulty applying language skills in larger group classroom settings. The child's IEP was revised to provide 30 minutes of speech and language as a related service two times per week.

At the time of the IEP team meetings on October 25, 1999, and November 22, 1999, the MPS speech and language policy guidelines provided that a child whose speech and language development was commensurate with general intellectual abilities did not meet eligibility criteria for a speech and language impairment and would not be eligible to receive speech and language as a related service.

In April 2000, the district established new speech and language guidelines. The new guidelines provide that in order to meet eligibility criteria for a speech and language impairment, a child must evidence "[a] significant discrepancy in one or more of the following: language comprehension, expressive language and or pragmatics that results in an impairment¿[and] a significant discrepancy is defined as language standard scores falling 1.5 standard deviations below intellectual functioning for students age 6 to 21 years." When a child is a child with a disability due to an impairment other than speech and language, the new district guidelines permit IEP teams to determine that the child needs speech and language services in order to receive a free appropriate public education.

CONCLUSION:

The law requires a district to identify, locate, and evaluate all children with disabilities who are in need of special education. The criteria for the determination of eligibility for special education are set forth in the Wisconsin Administrative Code. In order to meet the criteria for a speech and language impairment, a child must have a delay or deviance in the acquisition of prelinguistic skills; or receptive oral communication skills or expressive oral communication skills or both. The impairment does not include speech and language problems resulting from differences in, paucity of, or isolation from appropriate models. Application of the district's current policy results in categorical exclusion of children for speech and language eligibility based upon intellectual functioning. This categorical exclusion is not authorized.

When the district's IEP team concluded the child did not have a speech and language impairment because his speech and language development was commensurate with general intellectual abilities, it applied improper criteria for considering whether the child had a speech and language impairment. There is a violation with respect to issue #1 of the complaint.

A district must provide a free appropriate public education (FAPE) to each child with a disability. A district meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with an IEP. Related service must be included in a student's IEP, and provided as part of FAPE, if they are required to assist a child with a disability to benefit from special education. A policy or guideline, as written or implemented, that acts as a categorical denial of related services to a class of students would conflict with the IDEA requirement that services are to be included in each student's IEP based on an individual determination.

On, October 25, 1999, and November 22, 1999, the IEP team applied the district's existing speech and language policy guidelines and determined that the child did not require speech and language as a related service. The district policy in effect on October 25, 1999, and November 22, 1999, denied speech and language services to all students whose speech and language development is commensurate with general intellectual ability. The IEP team used an impermissible policy when it determined not to provide speech and language services as a related service. There is a violation relating to issue #2 in the complaint.

However, the district has modified its guidelines for determining when a child needs speech and language services as a related service. The new guidelines permit IEP teams to determine that a child needs speech and language services in order to benefit from special education. At the May 30, 2000, IEP team meeting the district applied the proper standard when they determined whether the child needs speech and language services as a related service. The child was found eligible for speech and language as a related service.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district revises the district's guidelines for determining when a child is a child with a speech and language disability. Within ten days of receiving this report, the district will conduct an IEP team meeting to consider whether the child in this matter requires additional services due to the past application of improper speech and language policy guidelines and to determine whether the child is a child with a speech and language disability.

In recently-issued complaint investigation decision 00-011, the department directed the district to submit a CAP to ensure that the district informs staff of the policy guideline changes related to the receipt of speech and language services as a related service and applies the correct analysis when determining whether a child is eligible for speech and language as a related service. The department currently is working with the district to develop this corrective action. The department will, therefore, consolidate its oversight of the district's corrective action plans dealing with this issue in these two complaint investigations.

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 products 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 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
12/21/00
______________________________________
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