IDEA Complaint Decision 05-039

On August 25, 2005, 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 in this complaint are identified and addressed below.

  • Whether the district ensured that a student's individualized education program (IEP) was accessible to the child's teachers between September 1 and September 9, 2004; and
  • Whether the implemented a student's IEP between September 1 and September 9, 2004.

On June 12, 2004, an IEP team meeting was held to evaluate the student to determine continued eligibility, develop an annual IEP, and determine placement. The student's parent attended the meeting. The student was placed at a different school for the 2004-2005 school year. There is no record of when the student's cumulative education record including the student's IEP was received at the student's 2004-2005 school. The student's mother attended school with her son for the first two weeks of the school year. On September 8, 2004, the student' mother gave the student's kindergarten teachers a copy of her son's IEP because, after inquiring repeatedly if they had received the IEP, the mother was told they had not received the IEP. On September 9, 2004, the student's principal informed the mother that the school had received her son' IEP.

A local education agency (LEA) must ensure that IEPs are accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation. Between September 1 and September 9, 2004, the student's IEP was not accessible to the student's teachers and related service providers. Between September 1 and September 9, 2004, the child's IEP was not implemented.

  • Whether the district implemented a student's IEP during the 2004-2005 school year regarding the provision of:
    • speech and language services 90 minutes a week;
    • weekly written or oral communication between the parent and the speech and language and occupational therapists;
    • physical education instruction; and
    • district-wide assessments with accommodations.

The student's June 12, 2004, IEP requires special education instruction up to three hours daily on a de-escalating basis in a special education classroom; and up to three hours daily on an escalating basis in the regular education classroom; proprioceptive and vestibular input (sensory integration strategies) every half hour for a minimum of one minute in both environments; speech and language therapy 90 minutes per week in the special education speech room and occupational therapy 3-4 hours per week.

The student's mother alleges speech and language services of 90 minutes per week were not provided as specified in the student's IEP for the 2004-2005 school year. The student's home and school daily communication notebook documents services were not provided October 6 and 13, 2004, and January 26, 2005. The student's mother reports that speech and language services were not provided on several other dates in September 2004 but she did not keep written documentation of the dates. The school principal acknowledged that the student's speech and language therapy was scheduled during the therapist's lunch hour on some days. The student's mother alleges weekly oral or written communication between the student's parents and the speech and language and occupational therapists was not provided as specified in the student's IEP. District staff reported that the mother often went to the speech and language therapy room to talk to the therapist; however, these visits were reduced after the student's mother was informed that she must sign in at the school office. The occupational therapist was at the building only part-time. When the student's mother went to the occupational therapist to pick up her son, the therapist and mother spoke. However, these oral communications were not weekly. There were no written communications from the occupational therapist. No district log of weekly oral or written communications is available to document weekly communication between the therapists and parent.

The student's mother alleges regular physical education instruction was not provided as specified in the student's IEP. District staff reported that the student was scheduled to attend school on Monday and Wednesday mornings and Tuesday and Thursday afternoons. The student's schedule did not allow him to attend physical education classes which were conducted when the student was not at school.

The student's mother alleges her son did not participate with accommodations as specified in the student's IEP in district-wide assessments for all students in five-year-old kindergarten (5K). The student's IEP states that the student will participate in district wide assessments in an area with limited distractions, extra time, directions restated, and parts read when allowed. All 5K students in this building are assessed in reading. During the 2004-2005 school year this student did not participate in the reading assessment given to other 5K students in the building because when the assessment was administered the student was integrated into the four-year-old kindergarten (4K) classroom. The student's IEP was not modified to reflect this placement change.

Each district must provide special education and related services to a student with a disability in accordance with the student's IEP. Although the district provided some services to the student, the district did not consistently provide speech and language services and weekly written or oral communication between the parent and the speech and language and occupational therapists as specified in the student's IEP. Physical education instruction and participation in the 5K reading assessment with accommodations as specified in the IEP were not provided at all. The student is attending a different district elementary school during the 2005-2006 school year and the student's mother reports that services currently are being provided.

  • Whether the district ensured that required special education services were provided to a child with a disability utilizing properly licensed staff between September 1, and November 30, 2004.

The district started the 2004-2005 school year with a substitute teacher for the early childhood special education class. The substitute teacher was employed in the early childhood special education position between September 1 and November 22, for a total of 58 days. On November 22, the substitute teacher was replaced with a teacher who has an early childhood-special education license.

A short term substitute means a substitute teacher employed for no more than 20 consecutive days in the same teaching assignment. A short-term substitute must be a licensed teacher or a licensed substitute teacher. A short-term substitute may be employed to teach any subject at any grade level. A long-term substitute must be a licensed teacher or a licensed substitute teacher. However, a long-term substitute may be employed only in the subject and grade level in which the teacher is licensed. Although this long-term substitute teacher was licensed for pre-kindergarten she did not have a special education license. Special education services were not provided by properly licensed staff between September 28 and November 22 when a licensed teacher was hired and began teaching.

  • Whether the district properly modified a child's IEP after the September 23, 2004, IEP team meeting to reflect 4K regular integration rather than 5K regular integration.
  • Whether the district implemented a student's IEP during the 2004-2005 school year regarding the provision of integration in the regular education 5K classroom; sensory integration strategies in the classroom and accommodations and modifications including primary reinforcements, timeout, and sensory breaks.

On September 23, 2004, the district held an IEP team meeting for the student to review and revise the IEP and determine continuing placement. Changes to the student's IEP were hand written on the existing June 12, 2004, IEP. The IEP team agreed to place the student in the early childhood special education classroom with integration into the 4K regular education classroom on a trial basis for a few weeks. The IEP statement, "(Student) will be allowed (to) attend a 5K program on a half day basis" was not changed in the student's IEP. After the trial period the student continued to be integrated into the 4K regular education classroom. The student's parent requested that the IEP statement be changed. There is no documentation in the IEP of the decision to integrate the student into the 4K regular education classroom rather than the 5K regular education classroom.

A student's IEP must include a statement of the special education and related services and supplementary aids and services to be provided to the child including a statement of the amount of time the student will be educated and participate with other children with disabilities and nondisabled children in the general curriculum. The district did not properly document the September 23 IEP team's decision regarding the amount of time the student will be educated and participate with other children with disabilities and nondisabled children in the general curriculum. On May 27, 2005, the district held an IEP team meeting for the student to develop an annual IEP and determine continuing placement. The May 27, 2005, IEP program summary refers to services in the 4K regular education classroom in the statement of special education services and to inclusion in the 4K classroom in the statement of supplementary aids and services. The student's mother reports that all services are currently being provided to her son through a 5K program. The student's current IEP does not clearly document the IEP team's decision regarding the amount of time the student will be educated and participate with other children with disabilities and nondisabled children in the general curriculum.

In addition, the student's mother alleges that during the 2004-2005 school year her son was not integrated into the regular education 5K classroom and sensory integration strategies were not provided as specified in the student's IEP. The student's IEP requires proprioceptive and vestibular input (sensory integration strategies) every half hour for a minimum of one minute in during the child's instructional day. The student's IEP also includes the statement, "(student) will be allowed (to) attend a 5K program on a half day basis." The student with his mother attended the regular education 5K classroom for the first few weeks of school. On or about October 1, 2004, the student began receiving his instruction in the early childhood special education classroom and in the regular education 4K classroom, as the IEP team had determined would be tried on a short-term basis. Between October 1, 2004, and June 15, 2005, the student was not integrated in the regular education 5K classroom as stated in the child's IEP. Although sensory integration strategies were provided at times, they were not provided every half hour for a minimum of one minute as required in the child's IEP. Although accommodations and modifications, such as time-out, as needed, and primary reinforcers were provided, they were not consistently provided.

Within 30 days of receiving this decision the district is directed to reconvene an IEP team meeting to determine if additional services are needed as a result of not providing services as specified in the IEP during the 2004-2005 school year, for the delay in providing services to this student with properly licensed staff and to clearly document the IEP team's decision regarding the amount the student will be educated and participate with other children with disabilities and nondisabled children in the general curriculum in a 4K or 5K regular education classroom. By December 9, 2005, the district will send to the department a copy of the student's IEP.

The district will also review the IEPs for all the long-term substitute teacher's students between September 28 and November 22, to determine if any other students require an IEP team meeting to determine if additional services are needed for the delay in providing services by a licensed special education teacher. The district will hold IEP team meetings to revise the IEPs of other affected children with disabilities to reflect needed additional services. By December 9, 2005, the district will send the department evidence that it has completed these activities.

By December 9, 2005, the district will submit to the department a copy of this school's procedures to ensure each teacher or provider is informed of his or her specific responsibilities related to implementing each child's IEP and documentation that all 2005-2006 IEPs are accessible to staff and are being implemented.

This concludes our review of this complaint.

//signed 10/21/05 by SJP
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