IDEA Complaint Decision 02-035

On May 30, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Cumberland School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2001-2002 school year, failed to:

  • Properly respond to a request for educational services for a student with a disability transferring into the district at the beginning of the year;
  • Follow procedural requirements when disciplining a child with disability; and
  • Safeguard the confidentiality of education records by improperly releasing personally identifiable information to law enforcement authorities.

The parent, in her letter of complaint, maintains that she and her parents had requested that the district provide special education services for her son from the beginning of the 2001-2002 school year. The student began living in the district with his grandparents during the summer before school began. The grandparents are noted on the enrollment forms as the student's guardians and all notices and individualized education program (IEP) documents were sent to this address. The parent also maintains that after her son's enrollment, the district did not obtain her son's records from the school he previously attended in another state and that the district never did obtain the child's special education records.

District staff maintain that the district repeatedly attempted to obtain the student's records from his previous district and that they ultimately only were able to receive copies of his regular education records. They maintain that the out-of-state district advised them that a special education referral had been submitted, but because the process had not been completed, the district had not retained these records after learning that he would not return to school. District staff also assert that the grandparents initially preferred that the student continue as a regular education student, at least until results of the first grading period were available. This decision was made during a telephone call to the grandparents in mid-September letting them know that special education records from the previous school were not available and asking them whether they wanted the district to initiate a special education referral in Wisconsin. Records submitted by the district support this claim, including a Section 504 "Placement/Accommodation Plan" developed by district staff on October 10. This plan notes that the 504 team considered a special education referral but based on discussion during the meeting with the parent, grandmother, and student, the team decided to proceed with the 504 plan to see whether the accommodations would address the student's needs. The student was determined to have a handicapping condition qualifying him for accommodations under Section 504 based on the impairments of bipolar disorder, attention deficit disorder, migraine headaches, and impaired vision.

On November 11, 2001, the student's grandmother submitted a written referral for special education services. A notice for an IEP team meeting to be held on December 14 to determine eligibility for special education services was sent, but the meeting was rescheduled for January 7, 2002. On January 7 the IEP team determined that the child is a child with a disability, developed an IEP, and determined placement. These actions were taken within 90 days of the written referral as required by state law. The department determines that district staff considered making a special education referral during the October 504 planning meeting, but determined that a referral was not appropriate for this new student at that time. The department concludes that the district followed procedural requirements related to accepting a referral to determine whether the student is a child with a disability.

The parent also maintains that the district improperly disciplined her son following the determination that he is a child with a disability. The student was suspended for a total of eight and one half days during the school year. The student was not permitted to return to school, and was not provided services, an additional day following the last day of formal suspension. On February 21, 2002, the student had been removed from school without services for 9.5 cumulative school days in the school year. District administration, in consultation with the student's special education teacher, determined that he should not return to the high school setting following the period of removal in the belief that it could endanger the student's safety for him to return. This action resulted in a "de facto" or "constructive" suspension of the child from school. This day must be considered when determining whether a series of removals results in a change of educational placement or whether the child had been removed from school for more than 10 cumulative days in a school year.

The decision not to permit the student to return to the high school setting included a determination that the additional removal would not result in a change in placement. The decision also included a determination of the extent to which services were necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in his IEP during the additional removal. On February 22, 25, 26, and 27, the district arranged tutoring services for the student at the public library. An IEP team met on February 27 to review and revise the student's IEP, including the behavior intervention plan developed during the initial IEP team meeting held on January 7. The team revised the student's IEP, including the behavior plan, and determined that his placement should be changed to the neutral site effective February 28.

The parent maintains that the district improperly utilized an interim alternative educational setting (IAES) in changing her son's placement to a non-school setting in late February 2002. The district acknowledges that staff used the term "interim alternative educational setting" when it discussed changing the student's placement to an off-campus site. However, district staff maintain that the term was used incorrectly and that staff now understand the distinction between an alternate or neutral site placement and an IAES. The department concludes that the district correctly applied the complex law related to removing the student from his placement.

Finally, the parent maintains that the district improperly shared information about her son with law enforcement authorities. Federal special education law specifically permits a district to report a crime committed by a child with a disability to appropriate authorities. However, when a crime is reported, federal law requires that the district ensure that copies of the student's special education and disciplinary records are transmitted to the authorities to whom it reported the crime, to the extent permitted under federal education records law. The parent's concerns relate to events which took place in October 2001 and continuing police contact with her son in following months. The referral for special education evaluation was not submitted until November 7 and the student was not determined to be a child with a disability until January 2002. The district was not required in October 2001 to follow federal requirements related to reporting a crime committed by a child with a disability. The parent's concerns about continuing police contact with the youth following the initial October referral are not matters under the control of the district.

This concludes our review of this complaint, which we are closing.

//signed CST 8/28/02
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