IDEA Complaint Decision 00-047

On June 27, 2000 (letter dated June 27, 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. In investigating this complaint, department staff interviewed the complainant and reviewed correspondence from the complainant and school district, and relevant pupil records from the district.

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ISSUE:

the district fail to provide special education transportation as required by the child's current ESY individualized education program?

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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(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; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services, including rehabilitative counseling; orientation and mobility services; medical services for diagnostic and evaluative purposes only; and the early identification and assessment of disabling conditions in children.

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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 115.787, 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 supplementary aids and services to be provided to the child* * *.

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34 CFR 300.309 Extended school year services.

(a) General. (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a) (2) of this section.

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(b) Definition. As used in this section the term extended school year services means special education and related services that--

(1) Are provided to a child with a disability--

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(ii) In accordance with the child's IEP; * * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Questions 33 and 46.

33. Must a public agency include transportation in a child's IEP as a related service?

As with other related services, a public agency must provide transportation as a related service if it is required to assist the disabled child to benefit from special education. * * *

46. Is the IEP a commitment to provide services--i.e., must a public agency provide all of the services listed on the IEP?

Yes. The IEP of each child with a disability must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act. * * *

FINDINGS OF FACT:

The student whose education is the subject of this complaint is a ninth grader with disabilities attending the Riverside University High School in the Milwaukee Public Schools (MPS). On January 25, 2000, the district held an IEP team meeting to review and revise the youth's IEP and to consider extended school year (ESY) services. The IEP states that the youth requires ESY services provided at the South Division High School and that he requires transportation as a related service. The start date for the ESY placement is June 26, 2000, with provision of transportation services to begin on June 26, 2000.

During the week of June 12, 2000, MPS sent a letter informing parents that during the week of June 19-23 they would receive busing information relating to the district's June 26, 2000, ESY start date. On June 23, 2000, the complainant had not received this information and left a phone message with the district. On June 26, 2000, the complainant informed the district that her son had not been picked up and transported to the ESY placement. The ESY coordinator returned the parent's call on June 26, 2000, and indicated that the district had not assigned her child a bus route and that transportation arrangements would take 48 hours for the complainant's son. On June 28, 2000, transportation services began for the complainant's son; two days after the start date for the ESY placement.

The district will conduct an IEP meeting on January 8, 2001, to review the student's IEP. The district agrees that the IEP team will also consider at that meeting whether services are necessary to compensate for the loss of two ESY days.

CONCLUSION:

A school must provide each child with a disability with a free appropriate public education (FAPE). A district provides FAPE, in part, by providing special education and related services, including ESY services, consistent with the child's IEP.

The child's IEP developed on January 25, 2000, requires that the district provide ESY transportation as a related service on a daily basis beginning June 26, 2000. The district failed to provide the child with transportation to and from the ESY placement until June 28, 2000. The two ESY days were not made up by the school district. The complaint is substantiated.

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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) that ensures:

  1. transportation is provided to the complainant's child and each child with a disability consistent with the provisions of the child's IEP; and
  2. at the meeting scheduled for January 8, 2001, the IEP team will also consider whether services are necessary to compensate for two ESY days.

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
12/19/00
__________________________________________
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