IDEA Complaint Decision 00-063

On November 17, 2000 (letter dated November 12, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Palmyra-Eagle 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 materials, including a letter of response, provided by complainant; and portions of the child's education records, the district's written response to the complaint and written statements prepared by district staff. Department staff also spoke with the complainant and with the district's director of special education.

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ISSUE #1:

Did the district fail to provide speech and language services to complainant's child during March and April 2000, as required by his IEP?

ISSUE #3:

Did the district, following a referral for a special education evaluation in January 2000, fail to determine whether the child is a child with a disability and send proper notice of the determination to the parent within required time limits?

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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(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.

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(c) Determine the special education placement for the child under 115.79.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under s. 115.777 or initiates a reevaluation of the child under 115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.

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(d) Subject to pars. (a) to (c), if the parents of the child or the local educational agency staff determines at any point during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency shall provide it.

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Section 115.782, Wisconsin Statutes
Evaluations.

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(c) If the individualized education program team determines that a child is not a child with a disability, the team shall prepare an evaluation report. * * * The local educational agency shall give a copy of the evaluation report to the child's parents with the notice under 115.792 (1) (b).

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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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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:
(1) An evaluation is conducted under 115.782 before special education and related services are provided to a child with a disability.
(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. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under 118.51.
(2) NOTICE. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:

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(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in 115.78 (4).

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34 CFR 300.503 Prior notice by the public agency; content of notice.

(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child¿.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31.

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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Letter to Marian Matthews, Madison Metropolitan School District, from Jack Frye-Osier, Department of Public Instruction (March 10, 2000).

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The department believes the (re)evaluation process is completed when the district provides the parent with the notice of evaluation findings required under 115.792(1)(b) Wis. Stats. The notice must include the elements defined in 115.792(2). In the department's model system of special education forms, proper notice has been provided and the (re)evaluation is completed when the Evaluation Report (forms I-3 and I-5 and forms I-4, I-6, I-7, and I-8 as appropriate), and either the Determination and Notice of Placement (I -16 or I -17) or the Notice of IEP Team Findings That Child Is Not a Child With a Disability (A-5) are provided to the parent.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint was a child with a speech and language disability who attended school in the district during the 1999-2000 school year. On January 17, 2000, the child's parent submitted to the district a written request for a re-evaluation of her child. The 90th day following this request was April 17, 2000. On April 13, 2000, an individualized education program (IEP) team determined that the child no longer is a child with a disability. The team had reached this conclusion during an IEP team meeting conducted on March 27, 2000, but, due to the parent's request for additional time, reconvened the meeting. The parent attended both the March 27 and the April 13 IEP team meetings. The team concluded that the child no longer has a speech/language impairment and also that he does not have an other health impairment (OHI) or a learning disability. The child currently has a services plan developed pursuant to Section 504 of the Rehabilitation Act of 1973.

During the April 13 meeting, the parent received copies of the evaluators' individual summaries of findings. The team prepared an evaluation report which indicates that on April 13 the team determined that the child has no impairments. However, the district did not provide the parent with a copy of this eligibility determination until May 12, 2000. The district did not seek from the parent an extension of the 90-day time limit for conducting evaluations. Although the parent, as a participant on the IEP team, knew of the team's determination, the district did not provide the parent with prior written notice, which conforms to the requirements of the law, of its determination that the child no longer is a child with a disability. The district has adopted, with some modification, sample forms developed by the department to enable districts to meet the procedural requirements of the law. The department's forms package includes a notice of determination that a child no longer is a child with a disability. The district did not utilize this form following the IEP team determination that the child no longer is a child with a disability.

During the 1999-2000 school year, the child had an IEP covering the period September 8, 1999, to September 8, 2000. This IEP provides that the child is to receive 25 minute speech/language therapy sessions two times per week. According to records submitted by the district, the last speech and language therapy session for the child was provided by district staff on March 23, 2000. The district did not provide to the parent written notice which includes a statement that the parents of a child with a disability have procedural safeguards and the way to obtain a description of the safeguards prior to making this change in the provision of a free, appropriate public education (FAPE) to the child.

CONCLUSION:

An LEA must document and date the receipt of each request for an evaluation or reevaluation and appoint an IEP team for each child referred. The local educational agency must notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral. Before the expiration of the 90-day time limit, if the local educational agency needs an extension, it must inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of the time limit.

A local educational agency (LEA) must provide FAPE to each child with a disability. An LEA meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with an IEP. Whenever a district proposes or refuses to change the provision of FAPE to, or the educational placement of, a child with a disability, it must send prior written notice to the child's parents of its intent to so propose or refuse. The written notice must conform with the requirements in state and federal law, including, among others, that the notice include a statement that the parents of a child with a disability have procedural safeguards and the way to obtain a description of the safeguards.

Although the parent, as a participant on the team, knew of the IEP team's determinations, the district did not provide the parent with proper, prior written notice of the results of the re-evaluation of the child, or of the determination to discontinue providing speech and language services to the child. This resulted in the district's failure to continue to provide services to the child until a reasonable time after the parent received proper notice of the district's determination to stop providing special education service. Further, the district failed to complete the reevaluation of the child, or request an extension from the parent, within 90 days of receiving the parent's evaluation request. In these regards the district failed to implement correctly the law related to Issues #1 and #3 in this complaint.

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ISSUE #2:

Did the district, following a referral for a special education evaluation in January 2000, fail to include required participants on an IEP team to determine whether the child is a child with a disability?

ISSUE #4:

Did the district, following a referral for a special education evaluation in January 2000, fail to use proper criteria when determining whether the complainant's son is a child with a disability by reason of other health impairment?

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:

* * *

(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:
(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.

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(c) Determine the special education placement for the child under 115.79.

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34 CFR 300.7 Child with a disability.

(a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with 300.530-300.536 as having ¿ an other health impairment, ¿ and who, by reason thereof, needs special education and related services.

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(c) Definitions of disability terms. The terms used in this definition are defined as follows:

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(9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.

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Wisconsin Administrative Code, Section PI 11.35
Eligibility criteria.

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(2) HANDICAPPING CONDITION.

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(k) Other health impairment. Other health impairment means having limited strength, vitality or alertness, due to chronic or acute health problems. The term includes but is not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, or acquired injuries to the brain caused by internal occurrences or degenerative conditions, which adversely affects a child's educational performance.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 28.

28. Do parents and public agencies have the option of inviting any individual of their choice be participants on their child's IEP team?

The IEP team may, at the discretion of the parent or the agency, include "other individuals who have knowledge or special expertise regarding the child¿ "* * * Under 300.344(a)(6), these individuals are members of the IEP team.

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34 CFR Part 300, Part B - Attachment I - Analysis of Comments and Changes, 64 FR 12584 and 5, March 12, 1999

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The special education teacher or provider who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP.

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Section 300.344(a)(5) essentially reflects the statutory requirement at section 614(d)(1)(B)(v), which requires the participation of an individual who is knowledgeable about the instructional implications of evaluation results, who may be another member of the IEP team. No further clarification should be provided since the statute specifically affords public agencies the flexibility to select another member of the IEP team to fulfill the requirement of 300.344(a)(5), provided that individual is knowledgeable about the instructional implications of evaluation results. [Emphasis added.]

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There is no need to make the participation of school nurses on the IEP team mandatory, as requested by commenters. As providers of the related service "school health services," their participation would be subject to the requirements of this section, and they could be members of the IEP team at the discretion of the parents or public agency, provided that they possess the requisite knowledge and special expertise regarding the child.

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FINDINGS OF FACT:

The complainant also alleges that the IEP team which determined her child's eligibility as a child with an other health impairment did not include a nurse or other health professional who was knowledgeable about her child's medical condition. IEP team meetings were conducted on March 27 and April 13, 2000. Both meetings included the child's regular education teacher, speech pathologist, and a learning disabilities teacher as participants. The district's director of special education was a participant for both meetings, as was a case manager who is a psychologist. The parent and a parent advocate attended both meetings and a psychologist invited by the parent attended the March 27 meeting. A reading teacher attended the March 27 meeting.

The evaluation report developed by the IEP team includes the following information.

Information from review of existing data
A. Summary of previous evaluations

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The School District of [district name] also did an evaluation to determine if [child] had a disability under the heading of Other Health Impairment. The district found that [child] did not meet the state/federal criteria for the label of OHI.


B. Information provided by parents
Prior to the meeting [parent] provided extensive information regarding [child's] diagnosis of [medical condition].

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C. Current classroom-based assessments and observations


[Child] fits well with his ¿ classmates. [Child's] grades are mostly satisfactory with some room for improvement¿. He is an active participant in oral class activities, asks questions, makes comments, and volunteers frequently. [Child] frequently needs reminders to get to work, to maintain sustained effort to complete assignments, and benefits from the modeling of correct answers and procedures. He is easily distracted by other activities in the room but appears able to master classroom content when his attention is redirected¿.

D. Observation by teachers and related service providers

Results of behavior rating scales indicate mild attending issues. Preferential seating has been a successful strategy, along with peer modeling. Teachers describe him as a boy who is cooperative and attempts all tasks when he is attending. His attention span and school performance varies from day to day. He, at times, has difficulty getting started on tasks and directions sometimes need to be repeated. During active periods of Physical Education, he exhibits no significant differences from his peers and has not required modifications to the P. E. program.

The evaluation report also includes information from additional tests and other evaluation materials, which states, in part:

Although [student] does demonstrate behaviors that are consistent with the above diagnoses, they do not interfere with his performance in the school setting. [Student] participates at grade appropriate levels in all language based activities in his classroom¿. Observations of him in classroom, computer lab, small group and playground settings indicate functioning levels commensurate with his peers¿. Overall academic levels are within the average range with no significant discrepancies between reading, math and spelling skills.

The determination of eligibility page reports that impairments were considered and rejected and documents how the student did not meet the criteria. The statement regarding other health impairment states: "Other Health Impairment was considered and rejected because [child's] [health problem] does not appear to significantly limit his strength, vitality or alertness at school. Further, it does not appear to be interfering with his ability to acquire academic skill or with his social/emotional development." The report also includes information from additional tests and other evaluation materials and the individual summaries of findings from the speech and language pathologist, occupational therapist, regular education classroom, art, music and physical education teachers.

CONCLUSION:

When a LEA appoints a team to evaluate or reevaluate a child, 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. The March 27 and April 13, 2000, IEP teams included individuals in each of the required roles. Neither federal nor state law requires that IEP teams include health professionals on IEP teams which will determine whether a child is a child with a disability by reason of other health impairment. The parent provided the district with information regarding the child's health problem. The district did not dispute the existence of the child's health problem. The IEP team included individuals who worked with the child on a daily or regular basis who were able to observe and report on the effects on educational performance of the child's health problem. The district correctly implemented the requirements of the law related to issue #2 of the complaint.

The criteria for the determination of eligibility for special education are set forth in the Wisconsin Administrative Code and in federal regulation. In order to meet the criteria for the impairment of OHI, a child must have limited strength, vitality, or alertness due to chronic or acute health problems. The child's health problem must adversely affect his or her educational performance. In this case, the complainant alleged that the IEP team improperly determined that her child did not meet OHI eligibility criteria because the IEP team did not apply the eligibility criteria appropriately. Specifically, the complainant alleged that the IEP team did not separately determine whether the child had limited strength, vitality or alertness due to a chronic or acute health problem and then proceed to determine whether such a health problem adversely affects educational performance. Complainant also maintains that the team utilized a standard not contained in the law, namely that the child's health problem did not "significantly" limit his strength, vitality or alertness at school. Finally, complainant maintains that the team's conclusion that "it does not appear to be interfering with his ability to acquire academic skills or with his social/emotional development" is a different standard from the "educational performance" standard set forth in the eligibility criteria.

The evaluation report prepared by the IEP team includes information on which the team could rely in determining that the child is not a child with an other health impairment. Summaries of findings were prepared by many of the child's then-current teachers. These summaries, while noting that the child does experience what could be limitations resulting from his health problem, report that strategies are used in class to compensate for these effects and that the effects are within the range of what the teachers observe for other students in the class who do not have a health problem. The criteria for the determination of other health impairment include two elements either of which, if not satisfied, result in the conclusion that the child is not a child with this disability. The second of the elements is that the child's educational performance is adversely affected by the effects of the health problem. If there is no adverse effect, there also is no impairment under the law. While the evaluation report could have been worded so as to be more closely aligned with the language of the criteria, when read in its entirety, the evaluation report indicates the team's determination that the child's educational performance is not adversely affected by the effects of his medical problem. The district correctly implemented the requirements of the law related to issue #4 of the complaint.

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DIRECTIVE:

The Palmyra-Eagle School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan to ensure that the district continues to provide special education and related services to a child determined no longer to be a child with a disability until a reasonable time after the district has provided proper written notice of the determination to the child's parent.

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
3/6/01
__________________________________________
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