IDEA Complaint Decision 00-043

On June 20, 2000 (letter dated June 19, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Madison Metropolitan 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 the child's relevant education records and the district's response to the complaint. Department staff spoke by telephone with the complainant, the child's special education teacher, and the district's attorney.

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ISSUE #1:

Did the district fail to conduct an annual review of the child's individualized education program (IEP) prior to its expiration in January 2000?

ISSUE #2:

Did the district provide special education services to the child from January through May 2000, without a valid IEP in effect?

ISSUE #3:

Did the district fail to provide the parent with prior written notice of the May 30, 2000 IEP team meeting?

ISSUE #4:

Did the district fail to provide prior written notice to the parent that her child was being reevaluated?

ISSUE #5:

Did the district fail to ensure that the IEP team prepared an evaluation report that included documentation of the determination that the child meets the criteria for the other health impairment (OHI) disability?

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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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 or continued eligibility for special education and related services and the educational needs of the child.
(b) Develop an individualized education program for the child under  115.787.

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Section 115.782, Wisconsin Statutes
Evaluations.

(1) NOTICE; CONSENT. (a) The local educational agency shall notify the parents of the child, in accordance with s. 115.792, of any evaluation procedures the agency proposes to conduct, the qualifications of the individuals who will conduct the evaluation and their names, if known.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

(1) REQUIREMENT THAT PROGRAM BE IN EFFECT. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.

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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.

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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. * * *

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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 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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FINDINGS OF FACT:

The complainant's child is a child with a speech/language impairment and an emotional disturbance who attends high school in the Madison Metropolitan School District. At the beginning of the 1999-2000 school year, the child had an IEP in effect. The ending date of the child's IEP was January 24, 2000. The district did not convene an IEP team to conduct an annual review and, if appropriate, revision of the child's IEP prior to January 24. The district continued to provide the child with special education and related services through the end of the 1999-2000 school year without a valid IEP in effect. The district acknowledged these violations in its response to the department.

The district held an IEP team meeting on May 30, 2000, for the purpose of reevaluation, developing an IEP and transition statement, and determining placement. The district contacted the complainant by telephone to schedule the time and location of the meeting. The district did not inform the complainant about the purpose of the meeting, who would attend the meeting, or her right to involve other participants with knowledge or special expertise about the child on the IEP team. The complainant attended the meeting with an advocate, whom she invited at her own initiative.

The district did not provide the complainant with notice of her child's reevaluation prior to the May 30 IEP team meeting. At the meeting, the IEP team determined that the child continues to meet the criteria for emotional disturbance and speech/language impairment. When the child's case manager typed up the IEP on June 2, 2000, he mistakenly checked the "other health impairment" box in the eligibility section of the evaluation report. This was a clerical error; the child was not considered for OHI eligibility. The district acknowledged this clerical error in its response to the department.

CONCLUSION:

A local educational agency (LEA) must provide each child with a disability a free appropriate public education (FAPE). An LEA meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a current IEP. An LEA must convene an IEP team to review a child's IEP periodically, but at least annually, to determine whether the annual goals for the child are being achieved.

In this case, the district failed to conduct an annual review of the child's IEP prior to its expiration on January 24, 2000. The district continued to provide the child with special education and related services through the end of the 1999-2000 school year without a valid IEP in effect. As the district acknowledged, violations occurred with regard to issues #1 and #2. Because an IEP team meeting was held and a new IEP was developed for the child on May 30, 2000, child-specific corrective action will not be required for issue #1.

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 to schedule the time and location of the May 30, 2000 IEP team meeting. The complainant attended the meeting with an advocate, whom she invited at her own initiative. The district did not inform the complainant of the purpose of the IEP team meeting, who would attend the meeting, or 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 #3.

An LEA must notify a child's parents of any evaluation procedures the agency proposes to conduct and the qualifications of the individuals who will conduct the evaluation and their names, if known. The district did not notify the complainant of its intent to reevaluate her child prior to the May 30 IEP team meeting. There is a violation with regard to issue #4.

The district acknowledged that it made a clerical error by checking the OHI eligibility box on the evaluation report when the final copy of the child's IEP was typed up on June 2, 2000. There is no violation with regard to issue #5. The district should, however, correct the eligibility determination page of the evaluation report, and provide it to the complainant.

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DIRECTIVE:

The Madison Metropolitan 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:

  1. conducts timely annual reviews of children's IEPs (issue #1);
  2. convenes an IEP team meeting for the purpose of determining whether the child needs additional special education and related services to compensate for the period from January through May 2000 when there was not a valid IEP in effect for the child (issue #2);
  3. provides special education and related services to children in conformity with proper IEPs (issue #2);
  4. provides proper notice of IEP team meetings to the complainant and all parents of children with disabilities, in compliance with 34 CFR 300.345 (a)(1), (issue #3);
  5. the district provides proper notice to the complainant and all parents of children with disabilities of any evaluation procedures the agency proposes to conduct and the qualifications of the individuals who will conduct the evaluation and their names, if known (issue #4).

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
8/21/00
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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