IDEA Complaint Decision 01-007

On February 1, 2001 (letter dated January 31, 2001), a complaint was filed with the Department of Public Instruction by XXXXX against the 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 principal, the child's mother and interviewed the complainant.

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ISSUE #1:

Did the district fail to provide the parent of a child with a disability a copy of her daughter's individualized education program (IEP) in a timely manner when requested in January 2001?

ISSUE #2:

Did the district fail to schedule an IEP team meeting at a time mutually agreed to by the district and the child's parent to review and revise the child's IEP when requested by the parent in January 2001?

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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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.

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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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(3) DEVELOPMENT.

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(e) The local educational agency shall give a copy of the child's individualized education program to the child's parents with the notice of placement under 115.792 (2).
(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:
1. Review the child's individualized education program periodically, but at least annually, to determine whether the annual goals for the child are being achieved.

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Section 115, Wisconsin Statutes
115.792 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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(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:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected these options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusals.
(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 300.345 Parent participation.

(a) Each public agency shall take steps to ensure that one or both of the parents of the child with a disability are present at each meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.

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(b) If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls.

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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; or
(ii) Refuses 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:

Office of Special Education Programs, Letter to Evans (May 9, 1991), 17 EHLR 1105

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Federal regulations requirethat public agencies provide parents with written noticea reasonable time before the agency proposes to change the provision of a free appropriate public education (FAPE) to a child with a disability. A change in the IEP for a child would constitute a change in the provision of FAPE, and the public agency would therefore be required to provide written notice * * *

FINDINGS OF FACT:

The child whose education is the subject of this complaint is a child with a disability who resides in the Milwaukee Public Schools District. On January 8, 2001, the district convened an individualized education program (IEP) team meeting to develop the child's annual IEP and determine continuing placement. The child's mother did not attend the meeting. The mother's advocate did attend the meeting. The team revised the child's IEP, which was to be in effect beginning January 8, 2001, and ending January 7, 2002. On January 23, 2001, the child's special education teacher provided the child's mother a copy of the IEP by giving the child a copy of the IEP with the notice of placement to take home to her mother.

On January 29, 2001, the child's mother requested by phone that an IEP team meeting be held to review and revise the child's IEP and that the meeting be scheduled after 2:45 PM. On January 30, 2001, the child's special education teacher wrote a letter to the parent stating that the IEP team members were not available after 2:45 PM. The teacher requested that the parent write a note to the teacher and inform her of another time for an IEP team meeting. The teacher stated in her January 30, 2001, letter that she would "set up" another IEP team meeting. On February 14, 2001, the child's mother telephoned a Wisconsin Department of Public Instruction (DPI) special education consultant and expressed her concern that the school district would not schedule an IEP team meeting for her daughter after the mother's work day was completed at 2:30 PM. The DPI consultant contacted the district special services supervisor, special education teacher, and principal regarding the parent's request for an IEP team meeting to be scheduled at 2:45 PM or later. On February 26, 2001, at 2:45 PM, the district convened an IEP team meeting to review and revise the child's IEP. The child's mother and the mother's advocate attended the meeting. The IEP team modified the statement of assessment modifications and the duration of the related service of transportation in the child's IEP.

CONCLUSION:

A local educational agency (LEA) must provide each child with a disability a free appropriate public education (FAPE). 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 to initiate or change the provision of FAPE to a child, including implementing a revised IEP, the district must provide the child's parent a prior notice that meets the requirements of the law. The notice must include a description of the action proposed by the district and a description of all factors that are relevant to the action. The district must give a copy of the child's IEP to the child's parents with the notice of placement.

On January 8, 2001, at an IEP team meeting, the IEP team revised the IEP and determined the placement for the child whose education is the subject of this complaint. The IEP and placement were to be implemented beginning January 8, 2001. The district did not provide the parents written notice nor a copy of the child's IEP until January 23, 2001. There is a violation in this regard to issue #1.

An LEA must convene an IEP team to review, and if appropriate revise, a child's IEP periodically, but at least annually. An LEA must take steps to ensure that the parents of a child with a disability are present or offered the opportunity to participate at each meeting required under the Individuals with Disabilities Education Act. An LEA must schedule such a meeting at a mutually agreed on time and place. If a parent does not attend an IEP team meeting, the district must use other methods to ensure parent participation, including individual or conference telephone calls.

On January 29, 2001, the mother of a child with a disability requested by phone that an IEP team meeting be held after 2:45 PM to review and revise her child's IEP. The child's special education teacher who schedules the IEP team meetings for this child informed the child's mother that IEP team members were not available after 2:45 PM. This response was not consistent with the requirement to schedule IEP meetings at a mutually agreeable time. However, on February 26, 2001, at 2:45 PM the district convened an IEP team meeting to review and revise the child's IEP. The LEA scheduled this meeting at a mutually agreed on time and is, therefore, not required to take additional corrective action with regard to this child.

DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to insure that the district provides parents with prior written notice of a change in the provision of FAPE and a copy of the IEP when it changes the IEP and schedules IEP team meetings at a mutually agreeable time. Child specific corrective actions are not required at this time for the child whose education is the subject of this complaint because the child's mother has been provided a copy of her daughter's IEP and another IEP team meeting was conducted on February 26, 2001.

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
3/20/01
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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