IDEA Complaint Decision 00-064

On November 17, 2000 (letter dated November 17, 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 reviewed relevant portions of the youth's education records and written statements from the district and complainant. Department staff contacted by telephone a district special education supervisor, a special education teacher, building assistant principal, the child's grandmother and interviewed the complainant.

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ISSUE #1:

Did the district fail to implement a child's October 2000 individualized education program (IEP) with regard to providing a harness to be used during transportation?

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 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:
(a) A statement of the child's present level of educational performance, including how the child's disability affects the child's involvement and progress in the general curriculum or, for a preschool child, as appropriate, how the disability affects the child's participation in appropriate activities.
(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.

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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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5. Consider whether the child requires assistive technology devices and services.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31

1. 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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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 7-year-old child with a disability who attends an elementary school in the Milwaukee Public Schools. On November 18, 1999, the district conducted an individualized education program (IEP) team meeting to develop the child's initial IEP. The IEP developed by the team at that meeting covered the period November 29, 1999, through November 28, 2000. On September 21, 2000, the child's mother, building principal, and special education teacher signed and submitted a request giving permission for a transportation saftey harness to be used by the bus driver. On October 10, 2000, the district conducted an IEP team meeting to review and revise the child's IEP. A goal with objectives and assistive technology was added to the child's IEP. The goal is "(student) will increase the number of appropriate behaviors he exhibits on the bus." The asssistive technology is described as, "A seat harness will be used to help keep (student) in his assigned seat on the bus." On November 29, 2000, a safety harness was provided. Between October 10, and November 29, 2000, there were 31 days of school on which the child was not provided a safety harness.

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, required assistive technology devices and services, related services, and supplementary aids and services in conformity with an IEP. The IEP must specify special education, required assistive technology devices, related services, and supplementary aids and services to meet the child's needs. This child's IEP provides that the child will receive assistive technology in the form of a seat harness to be used to help keep the child in his assigned seat on the bus. Between October 10, and November 29, 2000, there were 31 days of school on which the child was not provided a safety harness. There is a violation with regard to issue #1.

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ISSUE #2:

Did the district improperly change the placement of a child with a disability to another elementary school without conducting an individualized education program team meeting and without providing the parent with notice of the placement?

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:

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

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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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34 CFR 300.552 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that--

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(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

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:

The child whose education is the subject of this investigation resides in the Milwaukee Public Schools district. The child's primary language is Spanish. On November 18, 1999, an IEP team determined he met the criteria for cognitive disabilities and other health impairment, and needed special education and related services. The IEP special factors page states, "(Student) is Spanish dominant at this time. He will benefit from enrollment in a bilingual (English-Spanish) educational environment." The notice of placement indicates that the child's IEP would be implemented at a named elementary school beginning November 29, 1999. The language of instruction at that school is English/Spanish. Between November 29, and June 8, 2000, the child received services and completed kindergarten.

During the 1999-2000 school year the child moved within the district. On August 23, 2000, the child's grandmother enrolled the child at another elementary school that the child would attend if not disabled. The child was placed in a monolingual (English) first grade classroom. The classroom is staffed with a regular education first grade teacher, a special education teacher and a bilingual educational assistant. The child's mother expressed concern about the child's placement in an English-dominant classroom. On November 27, 2000, an IEP team meeting was held to develop an annual IEP and to determine placement. The child's mother and grandmother attended the IEP team meeting. The IEP team determined that special education and related services would continue to be provided at the school the child would attend if not disabled, in a bilingual regular education classroom, with instruction in a small group from a special education teacher one hour a day. On November 27, 2000, the district provided the parents with a notice of this placement.

CONCLUSION:

A school district must appoint an IEP team to determine the special education placement for a child with a disability. The placement decision must be made based on the child's IEP. Placement includes the education program set out in the student's IEP, the option on the continuum in which the student's IEP is to be implemented, and the school or facility selected to implement the student's IEP. With respect to the school building or facility, the 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.

During the 1999-2000 school year the child moved within the district. On August 23, 2000, the child's grandmother enrolled the child at the school the child would attend if not disabled. Due to the child's move, this new school was not the school the child attended during the 1999-2000 school year as determined by an IEP team on November 18, 1999. Before placing the child in a monolingual classroom a local educational agency (LEA) representative did not consult with the parent, review the IEP, and determine if the services in the child's IEP could be implemented as written. The district improperly changed the child's placement by placing the child in a monolingual classroom instead of a bilingual (English/Spanish) educational environment as stated in the child's November 18, 1999, IEP. On November 27, 2000, an IEP team meeting was held to develop an annual IEP and to determine placement. The IEP team determined that special education and related services would continue to be provided at the school the child would attend if not disabled. The child's IEP/placement was changed to a bilingual regular education classroom with instruction in a small group from a special education teacher one-hour a day. On November 27, 2000, the district provided the parents with a notice of this placement.

The complaint is substantiated. However, the district has corrected the placement error for the child at an IEP team meeting held on November 27, 2000. On December 15, 2000, the district issued revised placement procedures. The procedures explain that when a family moves and a parent enrolls a child in a new school that is the school the child would attend if not disabled, the receiving school LEA representative must consult with the parent, review the IEP, and determine if the services in a child's IEP can be implemented as written. If so, the district will provide notice of this placement and the IEP must be implemented immediately. If the IEP cannot be implemented as written in the new school, the district must conduct an expedited IEP team meeting to review IEP services and placement.

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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) to ensure that the district provides each child with a disability the assistive technology devices specified in each child's IEP. In previous complaint decisions involving the district, the department approved corrective actions relating to the district procedures for determining placement. The department will continue to work with the district to ensure implementation of those corrective activities. Therefore, no separate corrective action is required with regard to Issue #2.

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
12/21/00
____________________________________________
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