IDEA Complaint Decision 02-024

On March 28, April 1 and 19, and May 8 and 9, 2002, the Department of Public Instruction received a complaint and related documents from the Racine Education Association (REA) against the Racine Unified School District. This is the department's decision regarding that complaint. The issues are identified separately and addressed below.

In several ways, the circumstances of this complaint set it apart from other complaints filed with the department. This complaint involves the education of nearly 65 students. This complaint was filed by the Racine Education Association (REA), the teachers' union representing educators working for the district. The department rarely receives complaints from teacher unions. However, this is the third complaint filed by the REA since 1999. The issues in this complaint have been addressed in the previous complaints. In the previous investigations, the department found that the district did not follow procedural requirements in all instances reviewed. While the issues in this complaint clearly relate to procedural requirements in state and federal special education law, they also reflect ongoing communication and policy issues between school administration and staff.

During much of the time period covered by the three complaints filed by the union, the department has been engaged in onsite compliance review activities in the district. The district was directed to take corrective measures as a consequence of these review activities. The issues in this complaint have close parallels to some of the review findings and corrective actions. Further, the department consolidated its oversight of corrective measures required through the previous complaint investigation with the ongoing compliance review activities in the district. The department's review of follow-up activities, including as recently as early December 2002, have satisfied department staff that the district has made progress in addressing the compliance concerns identified during compliance review. The district has a number of new key administrators, all of whom started their employment with the district at the beginning of the time period covered by this complaint. The department has seen considerable progress under the new administration. Much of the action being reviewed in this complaint took place prior to completion of the compliance review corrective action, and the department expects that the corrective action already has resolved, or at least improved, areas of concern related to this complaint.

  • Did the district, during the 2001-2002 school year, provide specific students with the amount and frequency of special education services specified in each child's individualized education program (IEP)?

  • Did IEP teams, during the 2001-2002 school year, determine the special education services to be included in specified students' IEPs based upon the resources available at the applicable school building rather than upon each child's needs?

  • Did central office administrators make unilateral placement determinations for specified students and/or improperly subject IEP teams' placement determinations for administrative approval during the 2001-2002 school year?

The department reviewed the materials submitted to the department by REA union members, the district's written response to the complaint, the students' IEPs, and conducted interviews with district teachers and administration. One of the teachers, during her interview, indicated that she was not able to provide the services called for in the IEPs because the students were to receive special education in regular classrooms and schedule conflicts required the teacher to be in several classrooms at the same time. However, as written, it was not clear from the IEPs that the students were to receive all services in the regular education classroom. This teacher was responsible for the education of eight students and was assisted by a teacher's aide. The district maintains that it had reviewed the situation and had concluded the teacher should have been able to address the special education needs of her students. The department is not in a position to conclude that the teacher should have been able to serve each student as required in their IEPs. The department will ensure that the district has addressed or will address the concerns presented by this situation before closing this complaint, including by ensuring that IEPs clearly indicate the location in which special education services are to be provided.

A second teacher maintained in her written statement and during interviews that she had been unable to provide required services to three students in her classroom because one of her students required much of her attention, and her classroom aide's attention, for approximately two months in the fall of 2001. Later in the fall another half time aide was assigned to the room and somewhat later the student requiring substantial time moved from the district. Once again, the department was not able to determine whether the district provided appropriate special education services to the three students in part because of the way the amount of service was described in the IEPs. The teacher does not believe that, during the remainder of the year after the one student left her classroom, she was able to make up any of the service the students lost. She asserted that the three students lost ground during the early fall, but she did not maintain documentation to support her conclusion. The department is not in a position to conclude that the teacher should have been able to serve each student as required in their IEPs, but is concerned about how the teacher generally described the manner in which she addresses disruptive student behavior in her classroom. The department will work with the district to resolve the issues presented by this situation.

The complaint also alleges that 19 students at a district elementary school were not provided with speech and language special education or related services required by their IEPs. The school had one speech and language therapist on staff at the school during the 2001-2002 school year. During an interview with department staff, this clinician specified for each student the number of sessions which he did not provide during the school year, ranging from 17 thirty-minute sessions to 76 missed sessions of approximately 25 minutes each. Several of the students had IEPs which included additional service due to corrective action required in complaint investigation 00-017 which concluded that required services had not been provided to the students during the 1999-2000 school year. The clinician maintains that he informed the principal and special education administrator that he was not able to provide services called for in students' IEPs, starting the previous school year when the district moved a second clinician from this school to another district building.

In response to the complaint, the district maintains that administrative staff had reviewed the case load concerns expressed by the clinician early in the 2001-2002 school year and had concluded that there was sufficient staff time to address the needs of the students. The district also maintains that the IEP teams at this school include greater amounts of speech and language services in student IEPs than do teams at other district schools. The district has attempted to address a concern that the amounts of speech and language service at this school exceed what the law requires. The department is not able to determine whether the district provided appropriate services for the students at this elementary school during the 2001-2002 school year. However, the district did not provide the amount of service required in the student's IEPs. Once a district, through its IEP team, has determined the amount of service to be provided to a child with a disability, it must provide the service called for in the IEP until the program is modified at another IEP team meeting.

In the months since the service lapses and the complaint was filed, IEP teams have met to review the programs for these 19 students. Indeed, one of the students who was to receive additional service as a consequence of the decision in 00-017 has since been determined no longer to be a child with a disability. Each time a team meets, it determines the appropriate program for the student. This determination includes review of the student's current speech and language functioning and the progress or lack of progress toward meeting speech and language goals. A gap in service provision can be a factor to be considered during annual reviews, along with student progress and continuing need. The department will work with the district to determine whether IEP team meetings are required for the children who attended this school last year and whose programs were reviewed for this issue. When IEP teams meet, the teams will consider the factors noted above and other pertinent information in deciding whether additional service is required. While the district must include each child's special education teacher among the required participants on any IEP teams, it may appoint other individuals, such as other speech and language clinicians or a different local educational agency representative, to the team as well.

The REA also alleges that for several months at the beginning of the 2000-2001 school year, seven students who attended one district school did not receive the services required in their IEPs because the district did not have a licensed learning disability teacher for their classroom. The district acknowledges that it did not have a special education teacher to provide services to the students, but indicates that it did have substitutes for the classroom or assigned other teachers in the building to the classroom on a rotating basis and that they were given access to the students' IEPs. Most of the teachers who worked in the classroom in the fall and early winter had regular education, not special education, teaching licenses. Despite efforts by the district to hire a teacher for the classroom, it was not until February 2001 that the district hired a licensed special education teacher. Between the beginning of the school year and when a properly licensed teacher was hired to provide special education to the students in this classroom, the district did not meet state licensing requirements. The complaint alleges that students in the classroom encountered setbacks in educational progress during this time period. However, an interview with building staff indicates that one of the students has been determined no longer to be a child with a disability and several others were described as doing well. Because this portion of the complaint was resolved with the hiring of the teacher nearly two years ago, the department will work with district administration to determine whether IEP teams must be convened for any of the students and to ensure that the district has processes in place for educating special education students using properly licensed teachers.

The final allegation for issue one of the complaint is that a middle school student was not provided with physical education in the regular education environment as required by his IEP. The district's response is that the student received physical education in the regular education environment consistent with his IEP. The adaptive physical education teacher taught both regular and adaptive physical education and this student received physical education programming with regular education students. The department concludes that the district provided physical education services to the student as required in his IEP.

The other two issues, that IEPs are based upon the resources available at a particular school building and that central office administrators make unilateral placement determinations or improperly subject IEP teams' placement determinations to administrative approval, present issues which are difficult to resolve through the complaint process. Both can present concerns for teachers when they conclude administrative support or needed resources are not being provided. These two issues can present differences between an individual educator's view of what an appropriate program may be for a student and what the law requires of a district. Further, the department's compliance review activities in the district over the past three years have had an impact on these two issues. Through compliance review, the department concluded that the district's placement process was inconsistent with the requirements of statutory changes made in 1997 and 1998. The district took corrective action aimed at ensuring that IEP teams make placement decisions. The department also worked with the district to encourage movement toward a service delivery system which enabled students, to the extent appropriate, to remain in the schools they would attend if not disabled, as required by law. Continuing compliance review oversight has demonstrated progress in both areas.

The district's response to this issue indicates that staff have received training regarding the need to provide service whenever possible in the school the child would attend if not disabled and the need to match strategies and programming to the needs of the child. The district maintains some staff have misinterpreted the information provided to suggest that only services available in the building could be provided. Rather, the district indicates that staff have been told that IEP teams are not to transfer students to another building simply because staff is reluctant to change past programming with which they are most comfortable.

Several of the individual student situations alleged by the REA involve teachers who believed that placements in a different building would have been the appropriate placement for the students. Special education administrative staff concluded that the current placements should continue or that insufficient information to support a change had been provided. Districts must ensure that IEP teams make informed decisions consistent with legal requirements and may exercise oversight authority by advising team participants in advance of team meetings and by reviewing team decisions. However, IEP teams must include an individual who is knowledgeable about, and able to commit, district resources which will afford each student an appropriate education. These individuals are the district's primary mechanism for ensuring that procedural requirements are followed and appropriate programs required by law are provided.

If an administrative review after an IEP team meeting results in a decision that the IEP must be modified, a new IEP team meeting must be held to consider changing programming decisions. Documents submitted to the department by the district dated October and November 2002 clearly indicate that IEP teams are to make placement decisions. This is a change from the way the district made placements when the department conducted its first onsite compliance review of the district several years ago. The department has been working with the district to effect change through a plan of corrective action and will again review district progress in 2003.

One of the union's allegations relates to an IEP team meeting conducted in October 2001. An administrator reviewed the IEP and returned it due to concerns that the IEP did not meet legal requirements. As a consequence, the parent did not receive a copy of the IEP and placement until February 2002. However, the IEP and placement indicate that the IEP was to be implemented at the end of October 2001. Parents must receive notice of a proposed change in program a reasonable time prior to implementation. The district may review IEPs for compliance, but also must ensure compliance with notice requirements. The department will work with the district to ensure compliance with this requirement.

One of the placements about which the union complained was made by a district administrator rather than an IEP team when the student transferred into the district during the summer of 2001. A district is not required to conduct an IEP team meeting when a student transfers into the district if certain conditions are met, including that the district determines that the pupil's current IEP can be implemented as written and in the school that he or she would otherwise attend if not disabled. The placement notice of the student transferring into the district indicates that the school into which the administrator placed the child was not the school the student would attend if not disabled. An IEP team must make such a placement. An IEP team made a placement decision for this student after the administrative placement. No child-specific corrective action is required. Current district procedures are consistent with requirements for placing transfer students into special education programs. No additional corrective action will be required.

Another placement about which the union complained relates to a student whose parent requested placement at the Wisconsin School for the Deaf (WSD). Placement at WSD was discussed by an IEP team in January 2002 and the IEP developed at this meeting indicates the child will attend WSD starting several days later. However, the placement notice associated with this meeting indicates that the student will attend an elementary school in the district. Another IEP team meeting was held in March 2002. The cover sheet of this IEP indicates the child was attending WSD. The placement notice associated with the IEP developed in March continues to indicate that the child is placed in an elementary school in the district. Neither the January nor the March IEP includes an explanation of the extent to which the student will not participate in the regular class with students who do not have disabilities. The department will work with the district to ensure that placements at WSD are made consistent with the requirements of Information Update Bulletin 02.06, which was issued after the placement being reviewed here.

The complaint alleges that two students who attended one of the district's middle schools were moved from sixth to seventh grades during the second half of the 2001-2002 school year by school administrators and not by IEP teams. In one of the situations, the student had been retained at grade level twice by the out-of-state school district he attended at the time as a regular education student. On moving to Racine in the fall of 2001 he was evaluated and determined by an IEP team in November to be a child with a disability. The cover sheet for this IEP indicates that the student attends sixth grade. The Racine administrator decided to assign him from sixth to seventh after this meeting because he was significantly older than his classmates. An IEP team met in April 2002. The special education services, including amount and frequency, on the November and April IEPs are worded identically. The cover sheet for the April IEP indicates that the student attends seventh grade. The administrative grade level assignment was permissible under these circumstances.

The second student also transferred into the district from an out-of-state district where she had been identified in October 2001 as a student with a disability. Upon transfer district staff reviewed and adopted the IEP from the sending state and placed the child into 6th grade at her attendance area district school without conducting an IEP team meeting, as it is permitted to do. The parent signed a district placement form on March 13, 2002, giving permission for initial placement in the district. A principal at the child's school misread the student's IEP from the sending state and placed her into seventh grade classes. The sending state IEP in several places indicates what the student's 7th grade program is to be for the 2002-2003 school year. The student completed the 2001-2002 school year in 7th grade. The student began the 2002-2003 school year in 7th grade and on September 23, 2002, an IEP team determined the student should continue in 7th grade. No additional corrective action is required.

  • Did the district evaluate specified students to determine eligibility for special education in a timely manner during the 2001-2002 school year?

This issue of the complaint pertains to twelve students who attend one of five schools in the district. In its response to the complaint, the district acknowledges that the students were not evaluated within required time limits. The reevaluation of three of the students was not completed within three years of their previous evaluation. The other nine students were not evaluated or reevaluated within 90 days following initiation of an evaluation or reevaluation. State law permits districts to seek an extension of the 90-day time limit, first from the parent and then from the department if the parent does not agree to an extension for child-specific reasons. In its response to the complaint, the district describes circumstances which might have warranted extensions of the 90-day time limit for five of the students. In all but two of those situations, the district did not seek an extension from the parent and in the other two did not seek an extension from the department when the parent did not agree to the extension request.

The district maintains that the twelve students were the responsibility of only two IEP team case managers. Consequently, as corrective action the district will increase the supervision and support of those case managers to ensure timely evaluations. The district will document the success of these measures for the next year. The district has been developing a data tracking system capable of maintaining information on time limit requirements, including for evaluations and reevaluations. The system began tracking the three-year reevaluation time limit in January 2002. The system began tracking the 90-day time limit at the beginning of the 2002-2003 school year. The district, within the first 15 days of April, July, and December, 2003, will furnish the department with district-wide data related to evaluation and reevaluation time limits maintained by its tracking system as additional corrective action.

This concludes our review of this complaint. The department will contact district administration to initiate corrective measures noted above.

signed CST 1/22/03
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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