IDEA Complaint Decision 01-009

On January 31, 2001 (letter dated January 30, 2001), a complaint was filed with the Department of Public Instruction by XXXXX against the Appleton Area 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. As part of this investigation, department staff reviewed relevant education records of the child, materials submitted by the complainant, and documents submitted by the district in response to the complaint. Department staff spoke with the complainant and the director of student services.

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ISSUE #1:

Did the district fail to have an individualized education program (IEP) in effect causing a lapse in special education and related services after January 19, 2001?

ISSUE #2:

Did the district fail to provide IEP team members with a copy of the January 9, 2001, IEP in a timely manner?

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 115.78, 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.
(c) Determine the special education placement for the child under 115.79.

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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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(3) DEVELOPMENT.

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(e) The local education 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.
2. Revise the individualized education program as appropriate.

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34 CFR 300.342 When IEPs must be in effect.

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(b) Implementation of IEPs. Each public agency shall ensure that--
(1) An IEP--

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(i) Is in effect before special education and related services are provided to an eligible child under this part.

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FINDINGS OF FACT:

On September 15, 2000, an IEP team determined that the complainant's child was to receive special education and related services from the Wisconsin School for the Visually Handicapped (WSVH) for the first semester of the 2000-2001 school year. The IEP summary page projects the beginning date of IEP services as September 18, 2000, and provides an ending date of September 17, 2001. The IEP provides that the duration of special education, related services, and supplementary services is from September 18, 2000, to January 19, 2001. Both the complainants and the district agree that an IEP review was to take place prior to January 19, 2001, to determine continuing placement at WSVH or to transition the complainant's child back to the district.

On December 19, 2000, the district notified the complainants that their district's vision teacher would be taking a medical leave effective January 2, 2001, through approximately January 31, 2001. Efforts were made by the district to employ a certified substitute vision teacher; however, none were available. An IEP team meeting was held at WSVH on January 9, 2001, and the team discussed having the child remain at WSVH until the district's vision teacher returned. The parents would not agree to this proposal and indicated their desire to have their child return to the district effective January 22, 2001. The IEP team agreed on present levels of educational performance and goals and objectives/benchmarks. The IEP team agreed to meet the week of January 14, 2001, to complete the IEP.

The district hired a full-time certified special education substitute teacher to work with the complainant's child, beginning on January 23, 2001, in consultation with the vision teacher. The student's classroom teacher and the substitute felt they needed more time before an IEP team meeting was held, in order to get to know the student's strengths and needs. The IEP team set for January 14, 2001, was rescheduled to February 15, 2001. In a letter dated January 19, 2001, the district informed the parents that the IEP developed on January 9, 2001, was incomplete but that they were trying to arrange a meeting. The IEP did not include goals and objectives for special physical education, behavioral objectives, and determination of amount, frequency, and location of special education and related services.

The student began attending the district on January 24, 2001, and received services from a certified special education substitute teacher. Braille texts, supplies, and equipment were in place. Daily consultation occurred between the vision teacher and the staff at the child's school. An IEP team meeting was held on February 15, 2001, and the IEP was finalized at a February 20, 2001, IEP meeting. On March 3, 2001, the district provided the parents with a copy of this IEP along with the notice of placement. The district's vision teacher returned to his duties full-time on February 19, 2001.

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, related services, and supplementary aids and services in conformity with a proper IEP.

Here, the child's IEP was written with a starting date of September 18, 2000, and an ending date of September 17, 2001. However, the ending date for special education, related services, and supplementary aids and services was January 19, 2001. An IEP team meeting was held on January 9, 2001, where it was determined that the child would return to the district at the start of the second semester, January 23, 2001. The IEP team agreed to present levels of performance and goals and objectives, except for special physical education. The team did not establish behavioral objectives or determine the amount, frequency, and location of special education and related services.

Between January 24, 2001, and February 20, 2001, special education services, including reading, math, and adaptive physical education, and the related service of occupational therapy, were provided to the child. However, the IEP team had not completed its review and development of the child's IEP. While the district did provide services to the child during the period of January 23, 2001, to February 19, 2001, consistent with agreements reached at the January 9, 2001, IEP team meeting, those services were not pursuant to a proper IEP. The district failed in this regard to correctly implement the law related to Issue #1.

The complainants allege the district did not provide them and another team member with a copy of the child's January 9, 2001, IEP in a timely manner. The district provided the parents and school staff with a copy of the January 9, 2001, uncompleted IEP on January 19, 2001. The district provided a copy of the completed IEP dated February 20, 2001, on March 3, 2001. The district correctly implemented the law related to Issue #2.

DIRECTIVE:

Although the district provided services, the district has acknowledged its error in failing to have a proper IEP in place between January 24, 2001, and February 20, 2001. Because the district has taken action to correct this error, the department is not requiring the Appleton Area School District to submit a corrective action plan (CAP).

This concludes our investigation of this complaint #01-009, and we are closing this complaint investigation. 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
4/2/01

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