IDEA Complaint Decision 09-069

On September 28 and October 15, 2009, 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 are addressed below.

  • Whether the district implemented provisions of individualized education programs (IEPs) for Students A and B related to the amount and frequency of special education services during February, March, August, and September 2009, and
  • Whether the district implemented provisions of Student B’s IEP related to providing the student a laptop computer during the 2008-2009 school year.

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services in conformity with an IEP. Student A’s and Student B’s October 2, 2008 IEPs, that were in effect during February, March, August, and September 2009, specify special education instruction regarding classroom behavior 30 minutes once a week and specialized instruction for study/work habits 282 minutes once a week when the student is taking regular physical education gym class and 334 minutes once a week when the student is not taking regular physical education gym class. In the beginning of the 2008-2009 school year, the students were provided the special education instruction. The students’ special education teacher stated that, due to a change in her assignment and duties, the students did not receive all the special education services included in their IEPs. The district did not implement provisions of Student A’s or Student B’s IEPs related to the amount and frequency of special education services during February, March, August, and September 2009.

Student B’s IEP specifies the student needs assistive technology services or devices: “Student will need a lap top computer to complete assignments due to poor organizational and handwriting skills.” The district acknowledges the student was not provided a laptop computer. On September 22, 2009, at an IEP team meeting, the district offered a word processor for home use until the end of the school year. The student’s parent is concerned that the word processor provided the student is not meeting his needs the way the laptop computer did during his recent summer school experience.

By December 18, 2009, the district must hold IEP team meetings to consider whether the students require compensatory services due to the periods when the IEPs were not properly implemented. In addition, the IEP team for Student B must determine if the word processor rather than a laptop computer is meeting the student’s needs. The district must submit copies of the students’ IEPs to the department by December 23, 2009.

  • Whether the district on September 22, 2009, properly considered continuation of the IEP provision to have the student’s mother and/or the special education teacher present when the student was questioned by school administration or other persons of authority.

In developing each student’s IEP, the IEP team must consider the strengths of the student, the concerns of the student’s parent for enhancing the education of the student, the results of the initial evaluation or most recent evaluation of the student, and the academic, developmental, and functional needs of the student. In the case of a student whose behavior impedes his or her learning or that of others, the IEP team must also consider the use of positive behavioral interventions and supports and other strategies to address that behavior. IEP team decisions are made through a process of consensus decision making with involvement of all IEP team participants. The IEP Team should work toward consensus, but the local educational agency (LEA) has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE.

On September 22, 2009, the district held an IEP team meeting for Student A to develop an annual IEP, review and revise an IEP, develop a transition plan, develop a functional behavioral assessment, develop a behavioral intervention plan, and determine continuing placement. The student and the student’s mother attended the IEP team meeting. Student A’s October 2, 2008, IEP behavioral intervention plan states, “Due to (student’s name) disability, his mother and/or his IEP teacher should always be present when being questioned by school administration or other members of authority relating to school issues, concerns and/or matters. Mom wants to be contacted immediately after the incident had occurred.” When the IEP team discussed this accommodation the LEA representative expressed his concerns that the accommodation obstructed the administration’s authority. The LEA representative also explained that because the student does not have a disability which obstructs appropriate communication with adults, generally, such a request is inconsistent with the school’s responsibility to maintain a safe environment and to implement a school-wide disciplinary plan. The team discussed the student’s strengths and needs. Other members of the IEP team, including the special education leadership liaison (SELL), suggested social skills training be added to the student’s IEP to help him communicate with the administration or other persons of authority. Student A’s parent expressed her concern the provision in the October 2, 2008, IEP was necessary to address her son’s behavior. Although this provision was not included in the September 2009 IEP, the parent’s concerns were properly considered and addressed at the IEP Team meeting.

On September 22, 2009, after Student A’s IEP team meeting, the district held an IEP team meeting for Student B to develop an annual IEP, review and revise his IEP, develop a transition plan, determine continuing placement, and determine compensatory education. The student’s mother attended the IEP team meeting. Student B’s October 2, 2008 IEP includes an addendum to the supplementary aids and services statement indicating the student’s mother and/or IEP teacher should always be present when the student was being questioned by school administration or other members of authority relating to school issues, concerns and/or matters. In addition, the student’s mother wants to be contacted immediately after the incident has occurred. The LEA representative at Student A’s IEP team meeting was not the LEA representative at Student B’s IEP team meeting. During the September 22, 2009, IEP team meeting for Student B, the LEA representative simply stated the school cannot do that when the accommodation came up during the IEP team meeting, and it was removed from the student’s IEP. There was no further discussion because the LEA representative for Student B’s IEP team meeting believed the assistant principal serving on Student’s A IEP team had explained the situation. The IEP team did not consider the individual needs of the student and did not properly consider continuation of the provision from the October 2, 2008, IEP for Student B.

At the IEP team meeting conducted for Student B to determine if compensatory services are needed due to the periods when the student’s IEP was not properly implemented, the team must also properly consider continuation of this provision.

  • Whether the district in the fall of 2009 properly revised the IEPs for Student A and Student B.

In making changes to a student’s IEP after the annual IEP team meeting, the parent of a child with a disability and the LEA may agree not to convene an IEP team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the student’s current IEP. On October 1, Student A’s mother met with Student A’s special education teacher to discuss errors in Student A’s September 22 IEP. The special education teacher corrected the typing errors and provided the parent a notice of changes to IEP without an IEP team meeting. The parent agreed with two of the three changes.

Student A’s mother believes an error was created when the September 22 IEP statement describing how the student’s disability affects the student’s involvement and progress in the general education curriculum was changed. The September 22 IEP statement states; “(Student’s name) has been diagnosed with an Other Health Impairment (OHI) which affect his progress in the general curriculum by impeding his ability to stay focused, remain organized and pay attention to teacher directives.” The statement was changed to “(Student’s name) has been diagnosed with Specific Learning Disability (SLD) which affects his ability to maximize his success in his math class. He also have (has) challenges staying focused, remaining organized and paying attention to his teacher’s directives.” Before the October 2, 2008, IEP team meeting for Student A, the parent provided the team May and July 2008 letters from a behavioral health center child and family therapist regarding the student, including reference to the student’s attention deficit hyperactivity disorder (ADHD) symptoms. Student A’s October 2, 2008 IEP statement describing how the student’s disability affects the student’s involvement and progress in the general education curriculum states: “(Student’s name) has been diagnosed with an Other Health Impairment (OHI) which affects his progress in the general curriculum by impeding his ability to stay focused, remain organized and pay attention to teacher directives.” ADHD symptoms do not automatically mean a student meets the criteria for OHI. An April 10, 2008, notice of agreement that a three-year reevaluation was not needed states Student A continues to meet the criteria for specific learning disabilities. A review of Student A’s initial evaluation and reevaluations substantiate the fact that the district never determined the student met the criteria for OHI. OHI should not have been listed as the disability category.

In addition to the IEP revisions made by the special education teacher, the special services supervisor sent letters to the parent listing additional IEP pages changed for both Student A and Student B. The district determined the students’ IEP documents did not adequately reflect the proceedings at the IEP team meeting. These changes included changes to the amount and frequency of special education services, supplementary aids and services, and compensatory services. The parent and the special education teacher believe the original IEPs did reflect the IEP team’s decisions. The parent did not agree with the changes listed in the letter from the special services supervisor. These changes need to be determined by the IEP team at an IEP team meeting. At the IEP team meetings to determine if compensatory services are needed due to the periods when the students’ IEPs were not properly implemented, the team must also review and revise if needed the changes made to Student A’s and Student B’s September 22 IEPs.

  • Whether the district in October 2009 properly conducted an IEP team meeting for Student A with the required participants.

The district must ensure the IEP team for each student with a disability includes at least one regular education teacher of the student if the student is, or may be, participating in the regular education environment; at least one special education teacher of the student; and a LEA representative of the public agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general education curriculum and is knowledgeable about and authorized by the LEA to commit the available resources of the LEA. On October 15, 2009, when the student’s mother arrived at the school to attend Student A’s IEP team meeting, the assistant principal serving as the LEA representative informed the parent that he would be the regular education teacher of the student and the other assistant principal would be the LEA representative. The parent objected because the assistant principal never was Student A’s teacher and asked that the meeting be rescheduled. The IEP team meeting was not held on October 15. Because the meeting was not conducted there is no violation.

  • Whether the district improperly disclosed personally-identifiable information from Student B’s records.

LEAs must protect the confidentiality of pupil records. In spring 2009, the school received a notice from the district Department of Parent and Student Services with confidential information about Student B. Students in the school were overheard discussing the information, but there is no evidence students learned of this information through disclosure of the notice. The parent met with the school principal. The principal, in response to the parent’s concern, enacted new school procedures to ensure and maintain student record confidentiality.

By December 23, 2009, the district must provide the department with a corrective action plan to ensure, at the students’ school of attendance, IEPs are implemented as written, IEP teams properly consider behavioral supports and interventions, and IEPs are properly revised. In addition, the district must provide the department with a copy of the students’ IEPs clearly documenting the IEP teams’ considerations and decisions regarding compensatory services and IEP revisions.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 11/24/09
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