IDEA Complaint Decision 06-011

On February 27, 2006, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the New Berlin Public Schools. This is the department’s decision regarding that complaint. The issues presented below relate to the 2005-2006 school year.

  • Whether the district developed a student’s individualized education program (IEP) at the beginning of the school year.
  • Whether the district included the required participants during IEP team meetings.

These issues primarily relate to the foster parents’ concerns that their foster child’s IEP was not in place at the beginning of the school year, and that a regular education teacher and local education agency (LEA) representative did not participate in the IEP team meetings. The child’s guardian has authorized the foster parents to make any and all decisions regarding educational programming including all forms of educational, medical, and psychological testing and evaluations. On June 1, 2005, a meeting was held to discuss the foster child’s transfer and placement into the New Berlin Public Schools. A verbal agreement was made that an IEP team would meet prior to the beginning of the 2005-2006 school year to review and revise the transfer IEP, and to begin the reevaluation process. The foster parent contacted the district two times prior to September 1 to inquire about the IEP team meeting date. On September 8, five business days after school began, an IEP team meeting was held to discuss the adoption of the transfer IEP, which was adopted with revisions. Discussion also included the 3-year reevaluation. On September 8, the IEP team meeting did not include a regular education teacher and local education agency (LEA) representative; and on February 20, 2006, the IEP team did not include a regular education teacher.

For a child with a disability transferring into a school district, that district must implement the IEP from the sending district until the receiving district either formally adopts the sending district’s IEP, or it develops its own IEP. If the receiving district cannot implement all of the sending district’s IEP, the receiving district must provide services that approximate the IEP as closely as possible. Also, if an IEP team is convened, it must include, among others, at least one regular education teacher of the child and a LEA representative of the district. The New Berlin Public Schools did not implement the IEP or provide services that approximated the IEP during the first week of school, and two IEP team meetings did not include the required IEP team members.

The district has acknowledged its failure to comply with the law and proposed the following corrective actions: a meeting will be held with special education administrative personnel and special education teaching staff to review and clarify the legal requirements pertaining to the IEP procedures for transfer students with emphasis on ensuring that IEPs are in place at the beginning of the school year and include the required IEP team members. The district must submit to the department within 30 days of receiving this decision a corrective action plan (CAP) to ascertain the administrative personnel including building principals and special education teaching staff have knowledge of, and properly apply the required procedures for transfer students with IEPs.

  • Whether the district responded to the foster parents’ request for a reevaluation.

The foster parents claim their request for psychological testing as part of their foster child’s three-year reevaluation was not acknowledged in a timely manner. On June 1 and September 8, 2005, and early January and January 20, 2006, the foster parents requested verbally and by email psychological testing to be included with the foster child’s three-year reevaluation. The transfer IEP adopted by the district on September 8, 2005, states the child will participate in a reevaluation during the fall of 2005. On January 26, 2006, the district began the reevaluation. On April 13, the reevaluation, which included psychological testing, was completed.

When a district receives a transfer student, it must either adopt the evaluation and eligibility determination of the sending district or complete a reevaluation of the student. If a district chooses to complete a reevaluation, the 90-day time line begins when the student enrolls in school. In this case, the district did not begin the three-year reevaluation including the psychological testing until January 26, and completed it on April 13. The district must submit to the department within 30 days of receiving this decision a corrective action plan (CAP) to ensure the administrative personnel and special education teaching staff have knowledge of, and properly apply the required procedures for completing the evaluation and determining eligibility of a transfer student with a disability.

  • Whether the district properly implemented the student’s IEP regarding where to go during crisis situations.

The foster parents allege the district did not provide a consistent designated location for their foster child to go during times in crisis. Under the special education services section of the September 8, 2005, adopted IEP it states that behavior support (crisis intervention) will be provided daily in the special education room setting when behavior escalates and crisis intervention is needed. The behavior intervention plan (BIP) states that when the child is in conflict, he will be sent to the office. The district indicated the child may remove himself to the special education resource room. Responsible staff members were unavailable to ensure this was implemented consistently.

It is unclear whether the child was sent to the special education room for crisis support and whether the teaching staff who were responsible for ensuring the child got to the designated location were informed of their responsibilities. In light of this complaint, the district acknowledged that the crisis support was not implemented at all times and has taken corrective measures to establish a plan that will facilitate the communication between the regular classroom teachers and special education teachers. The district must submit to the department within 30 days of receiving this decision a corrective action plan (CAP) to ensure the administrative personnel and all teaching staff have knowledge of, and properly apply the procedures that indicate the teaching staff are properly informed of their IEP responsibilities and they properly implement portions of a student’s IEP.

  • Whether the district followed required procedures when suspending the student more than ten days during the 2005-2006 school year.

The foster parents contend their foster child was inappropriately suspended during the month of February 2006. The child’s attendance records and disciplinary incident reports for the 2005-2006 school year indicate the student was suspended in February for 11 cumulative days. The student was first suspended on February 1, for three consecutive days. From February 10 through 21, the student remained out of school for eight consecutive days. On February 10, the district sent a Notice of Expulsion to the foster parents. On February 16, the eighth day of suspension, the district held a manifestation determination meeting. On February 20 and 21, an IEP team meeting was held to review and revise the current IEP and to discuss the results of the functional behavioral assessment (FBA) and to revise the BIP. On February 22, the twelfth day of suspension, the district provided the student with education services through a tutor for two days after which the student was reinstated into the school. The district did not provide services on the 11th day of suspension.

When a child with a disability has been removed from his or her current placement for more than ten school days in a school year, during subsequent removals, the district must provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in the child's IEP. The district provided education services to the child on the twelfth day of suspension. The district must submit to the department within 30 days of receiving this decision a corrective action plan (CAP) to ensure the administrative personnel including building principals and special education staff have knowledge of, and properly apply, the required procedures when suspending a student more than ten days in a school year.

This concludes our review of this complaint.

//signed CST 4/18/06
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/svb

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