IDEA Complaint Decision 01-019

On March 15, 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, the child's mother and interviewed the complainant.

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ISSUE:

Did the district fail to schedule a March 21, 2001, individualized education program IEP team meeting at a mutually agreed on time?

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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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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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Letter to Anonymous, Office of Special Education Programs (OSEP), U.S. Department of Education, May 22, 1992, 18 IDELR 1303.

Based upon our interpretation of 34 CFR 30.345(a)(2) , a school district would be obligated to make a goodfaith effort to reach an agreement with the parents concerning the scheduling of IEP meetings .. However, the language of these provisions does not preclude a school district form (sic) considering its own scheduling needs. In fact, 34 CFR 300.345(a)(2) specifically states that IEP meetings are to be scheduled at a "mutually agreed upon time and place (emphasis added),".

34 CFR Part 300, Attachment 1Analysis of Comments and Changes (64 FR 12587)

The key factor in 300.345(a) is that public agencies effectively communicate with parents about the up-coming IEP meeting, and attempt to arrange a mutually agreed upon time and place for the meeting. This process should accommodate the parents' work schedules to ensure that one or both parents are afforded the opportunity to participate.

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. In late January or early February 2001, the child's mother requested that an individualized education program (IEP) team reevaluate her son. On February 9, 2001, a district special education teacher completed a request for a reevaluation of the child. On February 14, a district special education diagnostic teacher sent the child's mother a notice of reevaluation and left a voice message on the mother's telephone. On February 23, the district special education diagnostic teacher left another voice message on the mother's telephone. On February 23, the child's mother called the special education diagnostic teacher and they discussed the date and time of the IEP team meeting. The child's mother explained that she would have difficulty taking off from work on March 21, and suggested other days including March 16. The special education diagnostic teacher told the child's mother that Wednesday afternoons are the only day IEP team reevaluation meetings are scheduled at the school.

On February 23, and March 6, the district special education diagnostic teacher sent the child's mother statements of parental rights with invitations to an IEP team meeting to be held on Wednesday, March 21, at 1:45 PM. On March 15, the mother's advocate filed a complaint with the WI Department of Public Instruction stating that the district would not schedule the March 21, 2001, IEP team meeting at a mutually agreed on time. On March 16, the department notified the district by phone that the complaint had been filed. On March 19, the department notified the district by fax that the complaint had been filed. On March 21, 2001, at 1:45 PM, the district convened the IEP team meeting. The child's mother and the mother's advocate attended the meeting.

CONCLUSION:

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 conference telephone calls.

The mother of a child with a disability requested that an IEP team reevaluate her son. The diagnostic special education teacher who scheduled the IEP team meeting for this child informed the child's mother that Wednesday afternoons are the only day reevaluation meetings are scheduled at the school. This response was not consistent with the requirement to schedule IEP meetings at a mutually agreeable time. The child's mother suggested other days to schedule the IEP team meeting. On March 16, 2001, the department informed the district that the mother's advocate had filed a complaint. On Wednesday, March 21, 2001, at 1:45 PM the district convened an IEP team meeting to review and revise the child's IEP. The district did not schedule this meeting at a mutually agreed on time. The district did not attempt to accommodate the parent's scheduling request, although in this instance, the parent did attend the meeting and the purpose of federal law was met. In this regard the district failed to implement correctly the law related to the requirement to schedule IEP meetings at a mutually agreed on 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 IEP team meeting was conducted on March 21, 2001, with the child's mother in attendance.

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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 insure that the district schedules IEP team meetings at a mutually agreed on time.

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.

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
4/27/01

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