IDEA Complaint Decision 00-041

On June 16, 2000 (letter dated June 15, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against 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 the children's relevant education records, the district's response to the complaint which included statements from staff, and documents submitted by the complainant. Department staff spoke by telephone with the complainant and the school psychologist.

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ISSUE #1:

the district deny a free appropriate public education to two children with disabilities by refusing to enroll them in school from February 21, 2000, when they moved from South Milwaukee to the Milwaukee Public Schools district, until March 27, 2000?

APPLICABLE STATUTES AND RULES:

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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PI 11.07, Wisconsin Administrative Code
Transfer pupils.

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(b) When a board receives an EEN transfer pupil, the receiving board shall develop a placement offer to implement the child's IEP from the sending board. The IEP from the sending board shall remain in effect until the receiving board has its own IEP. The receiving board shall conduct a new M-team evaluation or adopt the one of the sending board and it shall develop a new IEP or adopt the IEP of the sending board. The receiving board may not adopt the M-team evaluation or the IEP of the sending board if it does not meet state and federal requirements.

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PI 11.07, Wisconsin Administrative Code (Effective June 1, 2000)
Transfer pupils.

(1) DEFINITIONS. In this section "transfer pupil with a disability" means a child with a disability under the IDEA whose residence has changed from an LEA in this state to another LEA in this state or from a public agency in another state to an LEA in this state.
(2) TRANSFER PUPILS WITH DISABILITIES IN WISCONSIN.
(a) The purpose of this subsection is to ensure that there is no interruption of special education and related services when a child with a disability transfers from one LEA in this state to another LEA in this state.
(b) When an LEA receives a transfer pupil with a disability, the receiving LEA shall implement the IEP from the sending LEA until the receiving LEA adopts the sending LEA's IEP or develops its own IEP.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 98-073, February 16, 1999

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The law requires that when a child with a disability transfers from one Wisconsin school district to another, there is no interruption in needed special education and related services.

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34 CFR 300, Appendix A, Question 17

17. If a disabled child has been receiving special education from one public agency and transfers to another public agency in the same State, must the new public agency develop an IEP before the child can be placed in a special education program?

If a child with a disability moves from one public agency to another in the same State, the State and its public agencies have an ongoing responsibility to ensure that FAPE is made available to that child. This means that if a child moves to another public agency the new agency is responsible for ensuring that the child has available special education and related services in conformity with an IEP.

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FINDINGS OF FACT:

This complaint concerns the education of two children with disabilities who are siblings. On February 20, 2000, the children and their foster parents moved from the South Milwaukee School District to the Milwaukee Public Schools (MPS). The complainant alleges that on February 21, 2000, the foster mother attempted to enroll the children at Story Elementary, their neighborhood school in MPS, but school staff refused to enroll them. According to the complainant, the foster mother attempted to enroll the children two more times and contacted several MPS employees, but the children were not enrolled or allowed to attend school until March 27, 2000.

In its response to the complaint, MPS states that, on January 18, 2000, a social worker notified a special education supervisor at MPS that the children would be moving to Milwaukee. On February 8, 2000, the South Milwaukee School District called the MPS special education supervisor to inform him that the children's education records were being sent at that time. The special education supervisor reportedly began looking for placement sites for the children. According to MPS, the foster mother contacted the same supervisor on February 23, 2000, to inform him that "[the children] were coming soon." MPS further states that the foster mother informed the supervisor on March 1, 2000, of the family's address in Milwaukee.

According to "Student Assignment" forms provided by MPS, the children were enrolled at Story Elementary effective March 27, 2000. The children's individualized education programs (IEPs) from South Milwaukee were implemented at MPS from March 27 until IEP team meetings were convened on April 18, 2000, to review and revise the IEPs.

CONCLUSION:

A local educational agency (LEA) has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. The law requires that when a child with a disability transfers from one Wisconsin school district to another, there is no interruption in needed special education and related services.

In this case, MPS staff had advance notice that the two children would be transferring into MPS from another LEA in Wisconsin. The children's foster mother contacted their neighborhood school and other MPS staff shortly after their move and attempted to enroll them in school. Despite these efforts, the children were not enrolled and did not begin attending school until March 27, 2000.

The children's IEPs were not implemented for over three weeks of school after MPS staff had notice that the children had transferred. This interruption of special education and related services constitutes a denial of FAPE. The complaint is substantiated with regard to issue #1. The department typically would require MPS to reconvene the IEP team to determine whether the children need education services to compensate for the lapse in services in order to receive FAPE. Following the foster mother's request for mediation, MPS offered the children five weeks of ESY services this summer to compensate for the lapse in services. Therefore, MPS is not required to take child-specific corrective actions with regard to issue #1.

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ISSUE #2:

At an IEP meeting held on June 1, 2000, did the district improperly deny the two children extended school year (ESY) services by basing the decision only on regression and recoupment factors and by refusing to allow the foster parent and the foster parent's advocate to equally participate in the IEP team's discussion and decision?

ISSUE #3:

the district fail to provide the parent with prior written notice of its refusal to provide ESY services to the two children this summer?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(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.

* * *

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 115.78, 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:

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(b) Develop an individualized education program for the child under  115.787.

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Section 115.792, Wisconsin Statutes
Procedural safeguards.

(1) SAFEGUARDS ENSURED. * * *
(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.
(c) A description 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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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Questions 5 and 9

5. What is the role of the parents¿in decisions regarding the educational program of their children?

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents (1) provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child; (2) participate in discussions about their child's need for special education and related services and supplementary aids and services, and (3) join with the other participants in deciding¿what services the agency will provide to the child and in what setting.¿ Part B specifically provides that parents of children with disabilities¿have their concerns and the information that they provide regarding their child considered in developing and reviewing their child's IEPs * * * .

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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FINDINGS OF FACT:

IEP team meetings were held to review and revise, if appropriate, the children's IEPs on June  1, 2000. At the meetings, the foster mother and her advocate, the complainant, requested extended school year (ESY) services for both children to compensate for the lapse in services when the children transferred to MPS. The complainant alleges that the school psychologist and principal limited the teams' discussions to ESY services and consideration of regression and recoupment and did not consider other factors. She maintains that the teams did not make proper determinations and alleges that she and the foster parent were not permitted to participate equally in the IEP team's discussion and decision. According to the complainant, the psychologist and principal decided that the children did not need ESY services. Each IEP team also included a regular education teacher and a special education teacher. The IEP team for one of the children included a related services provider, as well.

In its response, MPS states that the parent and complainant "participated in the IEP team meeting," that "a discussion was held" regarding ESY services, and that the team decided ESY services were not required. According to the school psychologist, the complainant stated at the IEP team meeting that the children needed ESY services to compensate for five weeks of missed services. He informed the department that he focused the team's discussion on whether or not the children needed ESY services. He also noted that that the children had completed extra school work during the remainder of the school year following their enrollment in MPS.

MPS acknowledges that it did not provide written notice to the foster mother of its refusal to provide ESY services to the children. The foster mother and the complainant requested mediation to resolve the issue. On June 23, 2000 (letter dated June 20, 2000), the complainant informed the department that the mediation request was withdrawn because MPS had offered the children five weeks of services during the summer.

CONCLUSION:

An LEA has a responsibility to provide a FAPE to each child with a disability. State and federal special education laws require individualized determinations of a child's special education and related services needs. The parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing, and revising the IEP for their child. The IEP team must consider the parents' concerns and the information that they provide, and make joint, informed decisions regarding the child's IEP. The IEP team should work toward consensus, but the LEA has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE.

An LEA must provide prior written notice that meets statutory requirements whenever it refuses to initiate or change the provision of FAPE to a child. Ideally, written notice should be provided at or immediately following a meeting in which the LEA refuses to initiate or change the provision of FAPE to a child because the LEA must also continue to provide the services promised in the child's IEP. If the child's parent disagrees with an LEA's refusal, the parents may request mediation or a due process hearing to resolve the dispute.

At the June 1 IEP team meetings regarding the two children, the foster mother and the complainant requested ESY services to compensate for the lapse in services when the children moved into the district. The IEP teams considered whether or not the children needed ESY services to compensate for the lapse in programming and concluded that they did not. The parent and the complainant actively participated in the discussion, but believe that the IEP teams did not consider the correct factors and reached the wrong conclusion. The department is unable to conclude that the district unduly limited or restricted the IEP teams' discussions or decisions. Issue #2 of the complaint is not substantiated. MPS acknowledges that it did not provide prior written notice to the foster mother of its refusal to provide ESY services. There is a violation with regard to issue #3.

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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:

  1. MPS staff are aware of and comply with the requirements of PI 11.07, Wis. Admin. Code (issue #1); and
  2. whenever MPS staff refuse to initiate or change the provision of FAPE to a child with a disability, MPS provides the child's parents with prior written notice of the refusal, as required by 115.792, Wis. Stats. (issue #3).

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
8/22/00
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

smp

For questions about this information, contact Patricia Williams (608) 267-3720