IDEA Complaint Decision 01-095

On December 13, 2001, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department's decision regarding that complaint. The issues are whether the district, during the 2000-2001 and 2001-2002 school years failed to:
  • review the individualized education program (IEP) of a child with a disability periodically to determine whether the child's annual goals are being achieved and revise the IEP as appropriate;
  • include required participants in IEP team meetings for the child;
  • provide a free and appropriate public education to a child with a disability, due to a significant number of school absences due to truancy and suspensions;
  • regularly inform the child's parent of the child's progress and the extent to which the child's progress is sufficient to enable the child to achieve his IEP goals; and
  • provide services to the child as required by the child's IEPs.

On December 21, 1999, the district held an IEP team meeting to determine continuing eligibility, placement and review and revise the child's IEP. The IEP was in effect beginning December 21, 1999 and ended December 20, 2000. On January 16, 2001, the district held an IEP team meeting to review and revise the child's IEP. The IEP was in effect beginning January 16, 2001 and ended January 15, 2002. A valid IEP was not in effect for the child during the 2000-2001 school year between December 21, 2000 and January 16, 2001. The district must reconvene an IEP team meeting, to determine whether the child needs additional special education services to compensate for the period when no valid IEP was in effect for the child. The district will send the department documentation of that IEP team meeting by February 28, 2002.

The district held IEP team meetings periodically to review and revise the child's IEP. A regular education teacher did not attend the December 21, 1999, IEP team meeting. All IEP team meetings held during the 2000-01 and 2001-02 school years included the required district participants. The district appears to have corrected this error. On April 14, 2001, the child's teacher met with the parent and the child to discuss the child's January 16, 2001 IEP, but this was not an IEP team meeting. The district conducted in-service training on August 16, 17, 20, 2001, including information to ensure that staff are aware that IEP teams must meet at least annually to review and, as appropriate, revise a child's IEP and that special education services must be provided pursuant to a valid IEP. No additional district-wide corrective action is required.

State statute defines a 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. During the first semester of the 2000-2001 school year the child was truant on at least 25 days. On September 13, 2000, the child was a habitual truant. During the second semester of the 2000-2001 school year the child was truant on at least 10 days. A district is required to notify the child's parent by registered or certified mail when the child initially becomes a habitual truant. The district did not notify the parent by registered or certified mail when the child initially became a habitual truant on September 13, 2000. During the first semester of the 2001-2002 school year the child was truant on 66 days. On September 5, 2001, the child was a habitual truant. During the first semester of the 2001-2002 school year, information regarding the child's school attendance was mailed four times to the child's parent. On November 19, 2001, a school social work referral was completed by the attendance secretary regarding the student's history of poor attendance. The school social worker recommended monitoring the child's attendance. However district did not notify the parent by registered or certified mail when the child initially became a habitual truant on September 5, 2001.

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 timely action to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. On January 16, 2001, at an IEP team meeting the team discussed the child's attendance. The child's parent expressed her concerns regarding her son's excessive absenteeism. The district did not modify the child's educational program or placement to address the absences. On January 22, 2002, an IEP team modified the child's educational program and placement. The district did not take timely action to provide the child FAPE, after the child initially became a habitual truant on September 13, 2000 or September 5, 2001.

The child's attendance records for the 2000-2001 school year indicate that he was suspended out of school for 1 day. The child's attendance records for the 2001-2002 school year indicate that he was suspended out of school for 13 cumulative days. On January 11, 2002, the student's out-of-school suspensions exceeded 10 cumulative days in the school year. On January 11 and 22, 2002, IEP teams met. The IEP teams completed a manifestation determination, modified the child's IEP and placement, reviewed a January 17, 2002, functional behavioral assessment (FBA) plan and developed a behavioral intervention plan (BIP) for the student. The district held an IEP team meeting within ten business days after the child's tenth day of suspension during the 2001-2002 school year.

During the IEP team meeting to determine whether the child needs additional special education services to compensate for the period when no valid IEP was in effect for the child, the district must also address whether the child requires additional services because the district did not take timely action after the child initially became an habitual truant in 2000-2001 and 2001-2002. The district will send the department documentation of that IEP team meeting by February 28, 2002. The district is revising and implementing a consolidated corrective action plan (CCAP) regarding several complaints to ensure that the district takes timely action, consistent with district truancy procedures and state laws, to provide children with FAPE. Department staff will continue to work closely with the district to assist in its review, revision, and implementation of the non-attendance CCAP.

The child's December 21,1999, IEP states the child's parent will be informed of the child's progress toward annual goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of year through parent conferences, report cards, work samples, and logs. The child's January 16, 2001, IEP lists the procedures for informing the parent as report card, progress reports, parent conferences, and calls home. The child's parent received report cards for the child. The parent did not receive any other reports informing her of her child's progress toward annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of year. The district must submit to the department by February 28, 2002, documentation that the child's parent is informed of the child's progress pursuant to the January 22, 2002 IEP. In addition, the district must submit a plan to ensure that parents receive reports of their child's progress toward annual goals, consistent with the requirements of the law. In its 1999-2000 Onsite Monitoring Report, the department found a violation related to this issue. The district undertook corrective activities to address this issue by conducting an inservice in November 2000. Because of the findings in this decision, the department is directing the district to take further corrective actions.

The child's December 21,1999, and January 16, 2001, IEPs state that the child will receive daily special education academic instruction in the regular education classroom, resource room and special education classroom. The IEPs also include supplementary aids and services to be provided on behalf of the student in regular education or other educational settings. The IEPs do not include statements of frequency and amount of service stated in a manner that the level of the district's commitment of resources is clear to the parents and other IEP team members. District staff reports that some services were provided to the child but it is unclear which services were provided to the child. The child's January 22, 2002, IEP clearly states the special education services to be provided, "study skills-organization support for (student's name) 2 times a week (20 minutes) per day." However, the supplementary aids and services are not stated so that the level of the district's commitment of resources is clear. The district must hold an IEP team meeting to review and than revise the applicable provisions of the child's current IEP so that the amount of special education, supplementary aids and services, and program modifications or supports clearly identifies the level of the district's commitment of resources. In its 2000-2001 Onsite Monitoring Report, the department found a violation related to IEP statements of service frequency and amount stated in a manner that the level of the district's commitment of resources is clear to the parents and other IEP team members. The district undertook corrective activities to address this issue at the beginning of the 2001-2002 school year. Because of continuing concerns, the department is directing the district to take further corrective actions. The district will, within 30 days of receipt of this decision, submit to the department a plan to ensure that district IEPs include statements of frequency and amount of service stated in a manner that the level of the districts commitment of resources is clear to the parents and other IEP team members.

This concludes our review of this complaint.

//signed 2/11/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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