IDEA Complaint Decision 00-045

On June 16, 2000 (letters dated June 15, and June 29, 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. In investigating this complaint, department staff reviewed information from the complainant, relevant portions of the child's pupil records, and the district's written response to the complaint. Also, department staff interviewed the complainant, a district special services administrator, and a special education teacher.

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ISSUE #1:

Did the district improperly change the placement of a child with a disability in June 2000 without an individualized education program (IEP) team meeting?

ISSUE #2:

Did the district fail during a June 9, 2000, IEP team meeting, to consider the child's educational needs resulting from autistic-like behavior and from speech and language needs?

ISSUE #3:

Did the district fail to include the proper participants at an IEP team meeting held on June 9, 2000, to revise a child's IEP?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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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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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777. Each team shall consist of all of the following:
(a) The parents of the child.
(b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment.
(c) At least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability as specified in 115.76 (5)(a) or, where appropriate, at least one special education provider of the child.
(d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency.
(e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f).
(f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.
(g) Whenever appropriate, the child.
(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.
(c) Determine the special education placement for the child under 115.79.

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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.
(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 supplementary 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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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.
(b) The individualized education program team shall do all of the following:
1. In the case of a child whose behavior impedes his or her learning or that of others consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior.

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4. Consider the communicative needs of the child, and, in the case of a child who is hearing impaired, consider the child's language and communicative needs, opportunities for direct communications with peers and professional personnel in the child's language and communicative mode, academic level and full range of needs, including opportunities for direct instruction in the child's language and communicative mode.
5. Consider whether the child requires assistive technology devices and services.

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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 to address all of the following:
a. Any lack of expected progress toward the annual goals and in the general curriculum.
b. The results of any reevaluation conducted under 115.782.
c. Information about the child provided to or by the child's parents, as described in  115.782.
d. The child's anticipated needs.
e. Other matters.

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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.

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PI 11.24, Wisconsin Administrative Code
Related service: physical and occupational therapy.

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(2) IEP TEAM. If a child is suspected to need occupational therapy or physical therapy or both, the IEP team for that child shall include an appropriate therapist.

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34 CFR 300.346 Development, review, and revision of IEP.

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(d) Requirement with respect to regular education teacher. The regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of--
(1) Appropriate positive behavioral interventions and strategies for the child; and
(2) Supplementary aids and services, program modifications or supports for school personnel that will be provided for the child, consistent with 300.347(a)(3).

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34CFR 3000, Appendix A, Questions 20 & 30

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

A public agency must initiate and conduct meetings periodically, but at least once every twelve months, to review each child's IEP, in order to determine whether the annual goals for the child are being achieved, and to revise the IEP, as appropriate, to address: (a) Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate; (b) the results of any reevaluation; (c) information about the child provided to, or by, the parents; (d) the child's anticipated needs; or (e) other matters (Sec. 300.343(c)).

A public agency also must ensure that an IEP is in effect for each child at the beginning of each school year (Sec. 300.342(a)). It may conduct IEP meetings at any time during the year. However, if the agency conducts the IEP meeting prior to the beginning of the next school year, it must ensure that the IEP contains the necessary special education and related services and supplementary aids and services to ensure that the student's IEP can be appropriately implemented during the next school year. Otherwise, it would be necessary for the public agency to conduct another IEP meeting. 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.

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30. Must related services personnel attend IEP meetings?

Although Part B does not expressly require that the IEP team include related services personnel as part of the IEP team (Sec. 300.344(a)), it is appropriate for those persons to be included if a particular related service is to be discussed as part of the IEP meeting. Section 300.344(a)(6) provides that the IEP team also includes ``at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.

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Further, Sec. 300.344(a)(3) requires that the IEP team for each child with a disability include "at least one special education teacher, or, if appropriate, at least one special education provider of the child * * * " This requirement can be met by the participation of either (1) a special education teacher of the child, or (2) another special education provider such as a speech-language pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under the applicable State standard. If a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the meeting or otherwise be involved in developing the IEP. As explained in the Committee Reports on the IDEA Amendments of 1997, "Related services personnel should be included on the team when a particular related service will be discussed at the request of the child's parents or the school." (H. Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17, p. 23 (1997)). For example, if the child's evaluation indicates the need for a specific related service (e.g., physical therapy, occupational therapy, special transportation services, school social work services, school health services, or counseling), the agency should ensure that a qualified provider of that service either (1) attends the IEP meeting, or (2) provides a written recommendation concerning the nature, frequency, and amount of service to be provided to the child. This written recommendation could be a part of the evaluation report. A public agency must ensure that all individuals who are necessary to develop an IEP that will meet the child's unique needs, and ensure the provision of FAPE to the child, participate in the child's IEP meeting.

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Department of Public Instruction, IDEA Complaint Decision 99-048 (October 25, 1999)

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The IEP team must determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. ¿[T]he IEP team must determine if the child's IEP can be implemented in the school the child would attend if the child were not disabled. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

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FINDINGS OF FACT:

At the beginning of the 1999-2000 school year, the child whose education is the subject of this complaint was 15 years old and received special education services for a cognitive disability (CD) and speech and language impairment. On January 31, 2000, the district held an individualized education program (IEP) team meeting to determine the child's continuing eligibility for special education, develop an IEP and determine continuing placement for the child for the period beginning January 31, 2000, and ending January 30, 2001. The IEP team determined that the child has impairments in CD, and speech and language. The January 31, 2000, IEP provides that the child is to receive speech and language services as a related service.

The child's father requested, in a letter dated June 6, 2000, that the district hold an IEP team meeting. On June 9, 2000, the IEP team met and reviewed the child's IEP. The IEP team participants included three of the child's special education teachers; an assistant principal serving as the local educational agency representative; the child's father; and a parent advocate. The child's speech and language therapist and a regular education teacher were not present at the IEP team meeting. The IEP team revised the goals and short-term objectives on the child's IEP. The IEP team discussed the child's speech and language needs and agreed that an IEP team meeting would be held in the fall of 2000 to further discuss speech and language with a speech and language therapist present. As of October 9, 2000, the district is in the process of scheduling an IEP team meeting to discuss the child's communication needs with a speech and language therapist participating in the meeting. The team also considered the child's autistic-like behavior. Appropriate placements for the child were discussed but the team did not make a decision to change the child's placement. The notice of placement attached to the child's June 9, 2000, IEP indicates that the student would continue at Juneau High School.

In June 2000, a district special services supervisor changed the child's school assignment, for the 2000-2001 school year, from Juneau High School to Marshall High School. On June 23, 2000, the child's father informed the district that the child's assignment should continue at Juneau High School. In response the district Division of Special Services assigned the child to continue at Juneau High School for the 2000-2001 school year. In June 2000 when the child's school assignment was changed to Marshall High School and changed back to Juneau High School, school was not in session.

CONCLUSION:

A local educational agency (LEA) must appoint an IEP team for each child referred for special education services. The IEP team must determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. The LEA must provide parents prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability.

Between January 31, 2000, and June 8, 2000, the child received services consistent with the IEP team's January 31, 2000, placement decision. In June 2000 the child's father was informed by the Division of Student Services that his son would attend a different school for the 2000-2001 school year. The child's father informed the district that the child's school assignment should not be changed. In June 2000, the child was assigned to continue at Juneau High School for the 2000-2001 school year. The district's proposed change in the child's school of attendance was withdrawn before the change took effect. Between June 9, 2000, and August 23, 2000, school was not in session. On August 23, 2000, the child continued to receive services at Juneau High School as determined at an IEP team meeting held June 9, 2000. The district did not improperly change the child's placement without an IEP team meeting. There is no violation with regard to issue #1.

The school district is required by law to initiate and conduct IEP team meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year, but can occur at any time within in the year, including upon reasonable request by the parents of a child with a disability. The team must consist of participants specified in state and federal law, including the child's parents; a special education teacher or provider; an LEA representative; and, as appropriate, an individual who can interpret evaluation results; a regular education teacher; and the child. At the discretion of the parent or the LEA, other individuals may participate. Generally it is not required that the IEP team include related services personnel. If a child is suspected to need occupational therapy or physical therapy or both, the team for the child must include an appropriate therapist. It is appropriate for other related services providers to be included if a particular related service is to be discussed as part of the IEP team meeting. A child's IEP must be based upon the child's unique educational needs and include services to meet those needs.

On January 31, 2000, the district developed an IEP for the child for the period beginning January 31, 2000, and ending January 30, 2001. On June 9, 2000, at the request of the child's parent, the IEP team met to review the child's IEP. The June 9, 2000, IEP team did not include the participation of a regular education teacher, as required. The June 9, 2000, IEP team did not include a provider in the area of the related service of speech and language. However, speech and language therapists are not required to be included on all IEP teams that meet to discuss a child's communication needs. The IEP team considered the child's speech and language and autistic-like behavior needs. The IEP team determined that more time was needed to develop the child's IEP and consider the child's speech and language needs with a speech and language therapist included on the IEP team. The IEP team agreed that an IEP team meeting would be held in the fall of 2000. As of October 9, 2000, the district is in the process of scheduling an IEP team meeting to discuss the child's communication needs with a speech and language therapist participating in the meeting. There is no violation with regard to issue #2. Because the IEP team did not include an individual in the role of regular education teacher, the complaint is substantiated for 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) which ensures that the district includes the proper participants at each IEP team meeting, including the IEP team meeting being scheduled for the child whose education is the subject of this complaint.

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.

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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 MJT
10/10/00
____________________________________________
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