IDEA Complaint Decision 01-004

On January 18, 2001, (letter dated January 17, 2001), a complaint was filed with the Department of Public Instruction by XXXXX against the Washburn 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, materials submitted by the complainant, and information submitted by the district and a former district employee. Department staff spoke by telephone with the director of pupil services and the complainant.

===========================

ISSUE:

On January 21, 2000, did the district violate a provision of the child's October 1999 individualized education program related to physical therapy?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(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.

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

* * *

(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

* * *

(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.

* * *

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.

* * *

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 1999-2000 individualized education plan (IEP) requires that he receive physical therapy services in the "community" for 60 minutes one time per week. "Community" is not specifically defined in the IEP. The IEP states that the student will not participate full-time in regular education and includes this explanation:

[The student's] medical and psychological needs related to his disability are such that he is unable to participate in the reg. ed. setting. It has been documented that the school building and people noted on the attached contraindication list have a negative emotional and traumatic effect on the student. * * *

The "Contraindications List" attached as part of the student's IEP includes, among other things, "[a]ll school buildings and campus vicinity" in Washburn. This list, like the "Positive Environments" list also attached to the IEP, does not specifically state that the student will or will not receive services in the locations listed. In its response to the complaint, the district acknowledged that the term "campus vicinity" as used in the student's IEP is "confusing for service providers."

The complainant alleges that, on January 21, 2000, the district's physical therapist violated the student's IEP by taking the student to a house located across from the Washburn Elementary School. According to the physical therapist, now retired, he took the student to a private residence to interact with a group of boys his age for approximately 15 minutes on the date in question. The house is located on the same street as the Washburn Elementary School, but not on the same block. The house is not across the street from the school, but the school grounds are visible from the yard of the house.

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. Likewise, the location of services must be stated in the IEP so that it is clear to parents and other IEP team members.

The student's IEP states that he will receive physical therapy services in the "community." The IEP does not define "community." The "Contraindications List" attached to the IEP includes, among other things, "all school buildings and campus vicinity" in Washburn. This list does not specifically state that the student will not receive services in certain locations. The district acknowledged to the department that the term "campus vicinity" as used in the student's IEP is confusing.

The student's 1999-2000 IEP does not properly specify the location in which services will be provided to the student. In this regard, the district failed to provide services to the student in conformity with a proper IEP.

 

DIRECTIVE:

The Washburn School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district convenes an IEP team meeting to review and, if appropriate, revise the student's current IEP so that the location of special education and related services is stated with sufficient specificity so as to be clear to the parent(s), IEP team members, and applicable district staff.

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.

 

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.

MJT/PH
3/26/01

Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

smp

For questions about this information, contact Patricia Williams (608) 267-3720