IDEA Complaint Decision 00-058

On October 16, 2000 (letter dated same), a complaint was filed with the Department of Public Instruction by XXXXX against the Oconto Falls 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. During this investigation, department staff reviewed relevant education records of the child, documents submitted by the complainant, and documents submitted by the district in response to the complaint. Department staff spoke with the complainant, the district administrator, and two special education teachers.

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ISSUE:

For one week in October 2000, did the district fail to implement the current IEP of the complainants' child when he was sent to the resource room for the entire week?

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 115.787, 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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ADMINISTRATIVE & 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.

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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.

The amount of a special education or related service to be provided to a child may be stated in the IEP as a range...only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior * * *

FINDINGS OF FACT:

The student's current IEP, dated March 8, 2000, states that the student will receive the following special education services: "Resource room on a daily basis. Can also use on as-needed basis to complete assignments and have tests read orally." With regard to frequency, amount, and duration of the services, the IEP states "daily" for "42 minutes per period." The IEP does not specify how many periods per day the student will receive special education services in the resource room.

According to a staff person who was on the student's IEP team, the IEP does not state how many periods per day the student will receive special education in the resource room because it is a common practice of the district to allow older high school students to choose how often they utilize special education services in the resource room. The student's IEP does not state the amount of special education services that the student needs and that the district is required to provide.

On October 9, 2000, the assistant principal directed the student to spend the entire week in the resource room. The assistant principal discussed this temporary arrangement with the student and the student's mother as a means of addressing the student's failing grades and failure to attend regular education classes. During that week, the student attended approximately two regular education classes. According to the special education teacher, the student did not bring assignments to the resource room during that week. The district did not convene an IEP team meeting to review and revise the student's IEP.

CONCLUSION:

A local educational agency (LEA) 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, related services, and supplementary aids and services in conformity with a proper IEP. The IEP must specify special education, related services, and supplementary aids and services to meet the child's needs.

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. It would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a particular behavior or the presence of a particular stimuli.

The student's current IEP does not properly specify the amount of services to be provided to the student. The IEP also does not identify the circumstances under which the student needs more special education services in the resource room. Therefore, the district is not providing special education services to the child in conformity with a proper IEP. In this regard, the complaint is substantiated.

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DIRECTIVE:

The Oconto Falls 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 for the purpose of reviewing and revising the student's IEP so that the amount of special education and related services is stated with sufficient particularity to identify the district's level of commitment of resources, including identification of the specific circumstances under which a particular service will be provided on an "as needed" or more intensive basis.
  2. the IEPs for all children with disabilities in the district specify the amount of special education and related services to be provided with sufficient particularity so the district's commitment of resources is clear to parents and IEP team members.

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 MJT
12/14/00
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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