IDEA Complaint Decision 09-021

On March 26, 2009, the Department of Public Instruction (DPI) 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 properly implemented a student’s individualized education program (IEP) between September 25, 2008, and March 24, 2009; and properly changed the student’s placement and IEP in March 2009.

On September 2, 2008, the first day of student attendance for the 2008-2009 school year, the student attended an elementary school other than the school named on the notice of placement. There is no documentation the receiving school reviewed the student’s IEP, and a placement notice was not provided to the parent to document the decision the IEP could be implemented as written at the school the student attended to start the 2008-2009 school year.

On September 25, the student attended a different district elementary school. The student was placed in a regular first grade classroom. A few days prior to November 3, the first grade teacher spoke to a special education teacher about the student. The special education teacher discovered the student has an IEP and started providing the student services. On or about November 20, the special education supervisor reviewed the student’s IEP, determined the services could be implemented as written at the new school, and sent a placement notice to the child’s parent.

The IEP in effect at the beginning of the 2008-2009 school year stated the student would receive four hours daily specialized designed instruction in math, reading, writing, and behavioral and social instruction in a special education classroom, and one hour per day behavioral and social instruction concurrent with academic instruction in a regular education classroom. The description of the student’s participation with non-disabled peers in the regular education environment states: “[Student’s name] requires specialized instruction and teaching techniques in behavior management and all academic areas that require a small group, less distracting environment for 4 hours per day.” Beginning November 3, the special education teacher provided the student services from 9:30 a.m. to 11:20 a.m. and 12:50 p.m. to 2:30 p.m. each day, for a total of three hours and thirty minutes, in a special education classroom. The student did not receive special education services in the special education classroom four hours per day. The student’s physical education, music, art, and library classes were with non-disabled peers. In addition, between 8:50 a.m. to 9:30 a.m. and 2:30 p.m. to 3:25 p.m. the student was in the regular education environment. The student did not receive one hour per day behavioral and social instruction concurrent with academic instruction in a regular education classroom from a special education teacher. Between September 25 and December 3, the student’s IEP was not properly implemented.

On December 4, 2008, an IEP team met to review and revise the student’s IEP, conduct a functional behavioral assessment, develop an annual IEP, develop a behavior intervention plan, and determine continuing placement. The student’s parent attended the meeting. Special education services to be provided beginning December 4, 2008, state the student would receive “specialized designed environment six hours per day in a special education classroom.” The conditions of the environment are described as “development and implantation of behavioral and emotional needs concurrent with instruction.” The description of the student’s participation with non-disabled peers in the regular education environment states: “The student will not participate full-time with nondisabled peers in regular education classes.... (Student’s name) requires a small group and/or individualized instruction in the areas of reading, written language, math, and social skills. Without this instruction he will have difficulties succeeding.” On December 4, 2008, the child’s parent was provided a notice of placement. The student’s placement continued at the school he was attending. Beginning December 4, the special education teacher provided the student services from 9:30 a.m. to 11:20 a.m. and 12:50 p.m. to 3:25 p.m. each day, for a total of four hours and 25 minutes in a special education classroom and with the special education teacher when she delivered student daily reports to classrooms. The student’s physical education, music, art, and library classes were with non-disabled peers. In addition, between 8:50 a.m. to 9:30 a.m. and 11:20 a.m. to 12:50 p.m., the student was in the regular education environment. The student did not receive special education services in the special education classroom six hours per day, as stated in the student’s IEP. Between December 4 and March 24, the student’s IEP was not properly implemented.

The December 4 IEP team members, including the child’s parent believed the student would soon have a new school placement which would have a district “most restrictive placement” (MRP) program. The program would provide a specialized designed environment six hours per day in a special education classroom. When a district IEP team decides a child with a disability has needs that can only be met in a school with an MRP program, a request for a reservation must be made by the special services supervisor or IEP team local education representative to the district central services department to determine which schools with MRP programs have available spaces for students. It is not required all schools in the district have all programs. When the team is informed of schools with student spaces available, the IEP team considers the schools and determines placement.

On March 24, 2009, the child’s parent went to district central services for help to find a new school of placement for his son. At 3:00 p.m. the parent spoke with a special services supervisor by phone and was informed (1) the student had a new placement at a different district school; (2) the phone conversation would suffice as the IEP meeting; and (3) he would not need to come in for a meeting. The student’s parent did not attend or participate by other means in a 3:10 p.m. IEP team meeting.

District IEP documents for the child include a notice for a March 24, 2009, 3:10 p.m. IEP team meeting. An IEP team meeting notice sent to the parent on March 24, and written while talking to the parent on the phone at 3:00 p.m., would not inform the parent of an IEP team meeting to be held that day at 3:10 p.m. The district diagnostic special education teacher at the IEP team meeting was not the special education teacher of the child. The school principal assigned to serve as the regular education teacher did not attend the meeting. Only the special education supervisor and a diagnostic special education teacher attended the IEP team meeting. Not all required members of an IEP team attended the meeting. The child’s IEP record includes a March 24 notice of placement with an April 1 projected date of implementation. This notice was sent to the district student services office. The parent did not receive this notice. The student was not enrolled in the new school until April 21. The student currently attends the school.

An IEP team must determine the special education placement, including the school building, for a child with a disability. The placement decision must be made based on the child’s IEP. The local educational agency (LEA) must provide a child’s parents or guardian prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability. Under limited circumstances, a district may change a child’s building without conducting an IEP team meeting. When a child changes schools because his or her residence changes to another attendance area within the LEA, or the child changes to a school the parent has selected under the MPS district open enrollment policy (three choice) or the child’s program or school building closes, an IEP team meeting is not required if: (1) the child’s new school building is the building he or she would otherwise attend if not disabled; and (2) the child’s IEP can be implemented as written in the new school building. None of these circumstances applies here. The district did not properly change the child’s placement and IEP March 24, 2009.

The district is directed to conduct an IEP team meeting to determine if the child should receive additional services due to a failure to implement the child’s IEP and properly change the child’s placement. By June 25, 2009, the district must send the department a copy of the child’s IEP with the consideration of additional services documented. In addition, the district is directed to review the current IEPs of all students at the student’s September 25, 2008, school of placement to ensure all students’ IEPs are being implemented. If any students’ IEPs are not being implemented, they must conduct an IEP team meeting to determine if the child should receive additional services. By June 25, 2009, the district must send to the department an assurance all IEPs have been reviewed and, if necessary, IEP team meetings conducted to determine if additional services are needed.

By June 25, the district must provide DPI with a corrective action plan for all district departments involved with district’s placement procedures and change of building assignment procedures to review and revise, if needed, procedures to ensure when students’ placements are changed, an IEP team determines the special education placement, including the school building, for a child with a disability. The placement decision must be made based on the child’s IEP. The placement decision cannot be made by one individual or based on the consideration of only one school with space available. The LEA must provide a child’s parents or guardian prior written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the educational placement of a child with a disability. By August 25, the revised procedures, or an assurance the procedures have been reviewed and do not need to be revised, must be submitted to DPI for approval. If the procedures are revised by August 25, the department must be provided a corrective action plan which includes a plan to distribute the revised procedures and provide staff training to special education supervisors, diagnostic teachers, LEA representatives, principals, assistant principals, special education leadership liaisons, and central office staff who make building assignment decisions.

This concludes our review of this complaint.

//signed CST 5/26/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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