IDEA Complaint Decision 01-025

On March 23, 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 documents and relevant education records submitted by the district as well as documents submitted by the complainant. Department staff interviewed a district special education supervisor, school social worker and the complainant.

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ISSUE:

Did the district fail to provide a child with a disability a free appropriate public education (FAPE) between January 29, 2001, and March 23, 2001, when the child had a significant number of school absences?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
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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Wisconsin Statutes, Section 115.77
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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Wisconsin Statutes, Section 115.78
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: (a) Evaluate the child under 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child. (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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Wisconsin Statute, Section 115.79
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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Wisconsin Statutes, Section 118.15
Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

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Wisconsin Statutes, Section 118.16
School attendance enforcement.

(1) In this section: (a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and 118.15 for part or all of 5 or more days on which school is held during a school semester.

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(c) "Truancy" means any absence of part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of  118.15.

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(2) The school attendance officer: (a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under 118.15.

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(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given. (cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Individuals with Disabilities Education Act State Complaint No. 91-019, January 29, 1992.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program or if the child is unable to attend school for physical or emotional reasons, arrange for homebound instruction. If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

Individuals with Disabilities Education Act State Complaint No. 99-005, April 23, 1999.

When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child with FAPE.

FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 15-year-old child with a disability in the Milwaukee Public Schools. The district provided the department a school attendance record for the child which indicates that the child was absent unexcused for all or part of 37 days of school between January 29, 2001, and March 23, 2001. The child also was absent unexcused for part of 3 days, January 24, 25 and 26. The child was truant for all or part of 5 days on which school was held during the semester. State statute defines an habitual truant as a pupil who is absent from school without an acceptable excuse on part or all of 5 or more days on which school is held during a school semester. On January 30, 2001, the child was an habitual truant. On February 7, 2001, district staff notified the child's parent of the child's truancy with a telephone call. The district did not notify the parent by registered or certified mail when the child initially became an habitual truant.

On February 21, 2001, the parent informed the child's special education teacher that her son was spending quality time at home with her and she did not want her son to return to the assigned high school. The teacher gave the parent the phone number of the building's special education supervisor to assist the parent with determining a new placement. The child was not referred to the school social worker. On or about March 27, after this complaint was filed, the special education supervisor met with and had two phone conversations with the parent advocate. The district did not modify the child's educational program or placement to address the child's absences between January 29, 2001, and March 23, 2001.

CONCLUSION:

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, the district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. When a child is absent from school without an acceptable excuse part or all of five or more days on which school is held during a semester the child becomes an habitual truant. A district is required to notify the child's parent by registered or certified mail when the child initially becomes an habitual truant.

The child was absent unexcused for all or part of 37 days of school between January 29, 2001, and March 23, 2001. The child also was absent unexcused for part of 3 days January 24, 25 and January 26. The child was truant for all or part of 5 days on which school was held during the semester. On January 30, 2001, the child was an habitual truant. On February 7, 2001, district staff notified the child's parent of the child's truancy with a telephone call. The district did not notify the parent by registered or certified mail when the child initially became an habitual truant. The district did not modify the child's educational program or placement to address the child's absences. The district did not take timely action to provide FAPE to the child when he had significant absences from school.

The department has received corrective action materials from the district following other recent complaint investigations related to student non-attendance. The district is directed, within 30 days of receipt of this report, to include in the existing non-attendance corrective action plan additional methods of correction to ensure that, within a reasonable amount of time after the district learns that a child is not attending school, action consistent with district truancy procedures and state laws is taken to provide the child with FAPE. Further, the district will conduct, within 30 days of receipt of this report, an IEP team meeting to consider whether the child whose education is the subject of this complaint requires additional services because of the delay in providing FAPE.

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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
5/4/01
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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