IDEA Complaint Decision 00-055

On September 11, 2000 (letter dated September 5, 2000), a complaint was filed with the Department of Public Instruction by XXXXX, a parent advocate, against the Dodgeville School District. On October 26, 2000 (letter dated October 25, 2000), the department received another complaint against the Dodgeville School District from XXXXX regarding the same child. These complaints allege violations 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 following materials: the child's individualized education programs (IEPs) for the 1999-2000 school year, written statements from district's director of pupil services and from the child's special education teacher, a written chronology of communications and meetings involving the child, and documents related to a November 15, 1999 IEP team meeting, and to requests for copies of the student's education records. In addition, department staff interviewed the complainant, the district's director of pupil services and the child's special education teacher.

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ISSUE #1:

Did the district fail to provide a parent advocate, upon request in June and July 2000, access to the education records of a student?

APPLICABLE STATUTES AND RULES:

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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34 CFR 300.502 Opportunity to examine records.

The parents of a child with a disability shall be afforded, in accordance with the procedures of  300.562-300.569, an opportunity to inspect and review all education records with respect to--
(a) The identification, evaluation, and educational placement of the child * * * .

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34 CFR 300.560 Definitions.

As used in 300.560-300.576--

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Education records means the type of records covered under the definition of education records in part 99 of this title (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes--

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(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records, and
(3) The right to have a representative of the parent inspect and review the records.

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34 CFR 99.3 What definitions apply to these regulations?

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Education records. (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Division of Learning Support: Equity and Advocacy Information Update Bulletin 98.02, 1998, Question 16.

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16. What are the rights of parents of children with EEN to access pupil records?


A parent of a child with EEN must, upon request, be shown and provided with a copy of pupil records. * * * A school district must comply with a request for access to records without unnecessary delay * * * . In all cases, the school district must comply with a parent's request within 45 days. * * *

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FINDINGS OF FACT:

The child whose special education is the subject of this complaint was enrolled as an 8th grader in the Dodgeville School District during the 1999-2000 school year. On June 19, 2000, the complainant, an advocate representing the parent, wrote to the district requesting copies of the child's IEPs, any evaluations, the behavior intervention plan and all placement notices for the 1999-2000 school year. The complainant wrote to the district again on July 19, 2000, to note that she had not received any of the requested materials. She subsequently filed this complaint. On October 3, 2000, the district's director of pupil services wrote to the advocate "[e]nclosed please find IEPs for [child] for last year and this year. I apologize that you did not receive this in August as you requested. I thought the copies had been mailed to you, it was apparently an error in my office." Complainant received the documents from the district on October 6, 2000.

CONCLUSION:

The district acknowledges that it failed to provide access to the education records of the student in a timely manner. The law requires the district to provide the records without unnecessary delay and no later than 45 days of the request. The district provided the required materials to the complainant more than 90 days after the request was made on June 19, 2000. The district failed to implement the law related to Issue #1 in this complaint correctly.

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ISSUE #2:

the district fail to provide a free and appropriate public education to the child when it shortened his school day during the 1999-2000 school year?

ISSUE #3:

the district fail to provide homebound services consistent with the child's IEP during the 1999-2000 school year?

ISSUE #4:

the district, during the 1999-2000 school year, fail to consider and, as appropriate, include in the child's IEP services to address his needs related to behavior?

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:

* * *

(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 115.787, 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, 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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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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(3) DEVELOPMENT.

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(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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Wisconsin Administrative Code, Section PI 8.01
School district standards.

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and hours of instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,137 hours of direct pupil instruction in grades 7 through 12. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31 and 35.

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

35. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members ( 300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

State Individuals with Disabilities Education Act (IDEA) Complaint No. 94-057, Superior School District, March 17, 1995.

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A school district is required to provide a FAPE to each resident child with [a disability]. In order to provide a FAPE, a district must, in part, provide special education and related services that meet the statutes and rules enforced by the department. One of the rules enforced by the department requires a district to schedule annually at least 1,137 hours of instruction for children in grades 7 through 12. The rule states that the instructional hours are computed as the period from the start to the close of each pupil's daily instructional schedule, and that the lunch period is not included in this computation. A district may schedule fewer hours of instruction for a child with [a disability] only if the participants in the meeting to develop the child's IEP determine that the child's individual needs dictate that fewer hours be scheduled. Such a determination must be reflected in the child's IEP.

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FINDINGS OF FACT:

The child's special education teacher and other staff at the middle school were concerned with the child's sporadic attendance and discipline problems during the fall semester of 1999. The district held an IEP meeting on November 15, 1999, to discuss whether the child should have a shortened school day. The child's grandmother attended the meeting. District participants included the director, the child's special education teacher, a guidance counselor, the middle school principal, and four of the child's regular education teachers.

The purpose of the meeting, as indicated on the cover sheet of the IEP developed at the meeting, is "address concerns modify school day." At the bottom of the same cover sheet, the words "shortened school day" also are written by hand. The cover sheet indicates, at the bottom, that it is the first and only page of the student's IEP. However, attached to the cover page is an annual goal sheet which includes one annual goal: "[Child] will improve behavior." Short-term objectives for this goal are: "[Child] will refrain from verbally harassing other students to include¿sexual comments, cut downs, verbal threats. [Child] will refrain from physically harassing other students to include¿pushing into lockers, grabbing, punching, throwing objects at others¿." There are no other pages printed on IEP forms.

Attached to the November 15th IEP are four pages of the director's handwritten notes of the discussion that took place during the IEP meeting that day. The notes state "have tried many things¿need to consider ed. of others¿at the point have considered other alternatives/interventions¿need to look at partial day¿invite [child] to show success w/shortened day¿[child] often refers day is too long¿." The notes indicate that the child's grandmother stated the child would be better off if he were to receive services in his home. The director then notes the middle school principal stated the child's mother had called and given him verbal permission to begin providing services to the student in his home. The director's notes state: "modify part of day to 1 hour w/[child's special education teacher]." The IEP, other than in this note, did not specify the amount, frequency, location or duration of the child's special education program. The written chronology states that the special education teacher faxed the child's mother a copy of the change in schedule on November 24, 1999, because the district had not been able to reach the parent. According to the fax, the child would be placed on a partial day schedule and then bussed home. Until further notice, his day was to end after first hour.

According to the special education teacher, the child was required to come to school for the first hour for special education language arts. He would then go home for the rest of the day. The child received modified assignments in his core studies of math, science, and social studies. He received no art or physical education. The special education teacher was assigned to go to the child's home each Wednesday evening for one hour to help him with his modified core subject assignments. These modifications in the child's schedule were not clearly reflected on the child's IEP. The amount of special education to be provided to the child is not clearly indicated, nor is the fact that the child will receive services in his home beginning after his first period class. Although the IEP includes an annual goal related to the child's behavior, it does not include strategies, including positive behavioral interventions and supports, to address the behavior.

The teacher noted that on several occasions he went to the child's home on a Wednesday evening and discovered the child was sick or was not at home and could not meet with him. The written chronology includes only seven dates when the special education teacher met with the child at his home: December 1 and 8, 1999; January 5, 19, 20 and 26, 2000; and February 9, 2000.

At the beginning of the spring semester, January 20, 2000, the district increased the child's time in school. According to the written chronology, the special education teacher called the child's mother at work to inform her that the child's day would be extended. An IEP team meeting was not conducted to make these changes. The teacher recalled during an interview that the child would remain in the middle school for language arts during the first hour and math during the second hour after which he would be bussed home for the rest of the day. The teacher also noted that the child did not resume a full day at school before the end of the spring semester. An IEP team meeting was conducted on May 18, 2000. Beginning in the fall 2000, the child began attending the 9th grade at Dodgeville High School.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child, in part, by providing special education and related services in conformity with a proper IEP. The IEP must specify special education and related services to meet the child's needs. The IEP team must, in the case of a child whose behavior impedes his learning or that of others, consider strategies and supports to address the child's behavior. Also, the IEP must include the amount, frequency, location and duration of special education and related services. A LEA meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a LEA must take when it changes the provision of special education to a child. State law requires a district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A LEA may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be based upon the child's individual needs. The scheduling of fewer than the minimum numbers of hours and the basis for the decision must be reflected in the child's IEP.

The child's IEP for the 1999-2000 school year specified that he would receive special education services. An IEP team made the decision to shorten the child's day, and the child's grandparent participated in this decision. The IEP team determined that the shortened school day was required to meet the individual needs of the child. However, neither the scheduling of fewer than the minimum number of hours of instruction nor the basis for that decision was reflected in the child's IEP. The IEP does not specify the amount, frequency, location or duration of special education services. Because the IEP does not specify the amount of service to be provided to the student, the department is not able to determine whether the child received services consistent with the IEP. In these regards the district failed to implement correctly the law related to Issues #2 and #3 in this complaint.

Although the child's IEP did include an annual goal and objectives related to behavior, the IEP did not include strategies, including positive behavioral interventions and supports, to address the behavior. The reduction in the child's school day would enable the child to avoid inappropriate behavior, but the IEP does not include strategies designed to assist the child to learn alternate behaviors. In this regard the district failed to implement correctly the law related to Issue # 4 in the complaint.

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DIRECTIVE:

The Dodgeville School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. the district convenes an IEP team meeting promptly for the purpose of determining whether the child needs additional educational services for the period when the district failed to provide homebound instruction as required by the child's IEP and to consider whether services are required to address the child's behavioral needs;
  2. the district provides services to children with disabilities as required by their IEPs;
  3. when the district determines a child is to receive a shortened school day, an IEP team documents the need for a shortened day in the child's IEP;
  4. when a child's behavior impedes his or her learning or the learning of others, IEP teams consider, when appropriate, strategies to address the behavior;
  5. the district provides copies of education records to parents' representatives within a reasonable time and no later than 45 days after the request.

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
2/19/01
__________________________________________
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