IDEA Complaint Decision 11-033

On August 31, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against Milwaukee Public Schools (MPS). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2010-11 school year:

  • Properly afforded the parent the opportunity to participate in an individualized education program (IEP) team meeting,
  • Properly implemented the student’s IEP regarding the provision of speech and language services and fidget toys,
  • Timely conducted an annual review of the IEP,
  • Properly included all required IEP team members during the April 2011 IEP team meeting,
  • Properly determined the student was no longer eligible for special education,
  • Properly responded to a parent’s pupil record request, and
  • Properly responded to a parent’s request for an independent educational evaluation (IEE).

The issues involve two of the student’s IEPs, in effect from September 1, 2010, through April 5, 2011, and April 6, 2011, through April 4, 2012, respectively. The student’s most recent IEP was developed at an annual meeting, which was held on April 6, 2011. The district conducted a three-year reevaluation of the student over the course of three meetings, which were held on May 9, 2011; May 16, 2011; and May 31, 2011.

Properly Afforded the Parent the Opportunity to Participate in an IEP Team Meeting

The district must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying the parents of the meetings early enough to ensure that they will have an opportunity to attend, and scheduling the meeting at a mutually agreed on time and place.

The parent states that she was not properly afforded an opportunity to participate in her son’s IEP team meetings on March 7, 2011; April 6, 2011; May 9, 2011; May 16, 2011; and May 31, 2011. The parent does not dispute that the district scheduled the meetings at mutually agreed on times and places and that she received notice early enough to ensure that she could attend. The parent states that on March 7, 2011, the district began the IEP team meeting a half an hour before the district invited her into the meeting room. However, the IEP team meeting did not begin until a member of the IEP team who was running late arrived, at which point the district invited the parent into the meeting room. The parent states that, at the April 6, 2011, and May 9, 2011, IEP team meetings, the district did not consider information provided by the parent. The district documented the parent’s input and information provided at both IEP team meetings. The district properly afforded the parent the opportunity to participate in her child’s IEP team meetings.

Properly Implemented the Student’s IEP Regarding the Provision of Speech and Language Services and Fidget Toys

Services must be stated in the IEP so that the level of the agency’s commitment of resources and the extent of removal from the regular education environment will be clear to the parents and district staff implementing the IEP. Staff responsible for implementing a student’s IEP must be aware of their specific responsibilities related to implementing the IEP and of the specific accommodations, modifications, and supports that must be provided for the student in accordance with the IEP.

The student’s two IEPs at issue required that the student be given fidget toys to allow for extra movement when he felt active in both the regular education and special education environments. The district made available and provided the student with fidget toys in both the regular education and special education environments, but the student did not always use them. The district properly implemented the student’s IEPs with respect to providing fidget toys during the 2010-11 school year.

The student’s IEP in effect until April 6, 2011, required that the student receive specialized instruction in sound production and intelligibility for 20 minutes, twice per week in the special education classroom. The student’s current IEP, in effect from April 6, 2011, through April 4, 2012, requires that the student receive 20 minutes of specialized instruction in articulation once per week in the special education classroom. The parent states the student did not receive speech and language services, as required by the IEPs. The district maintained a calendar that reflected the speech and language services provided to the student in accordance with the student’s IEPs. The calendar provides a detailed explanation of the specific lessons and a record of student absences and make-up sessions. The district properly implemented the required speech and language services in the 2010-11 school year.

Timely Conducted an Annual Review of the IEP

Each public agency must ensure the IEP team reviews the student’s IEP at least annually. On April 6, 2011, the IEP team conducted an annual review of the student’s IEP. The previous annual review was held on May 27, 2010. The district timely conducted an annual review of the student’s IEP.

Properly Included All Required IEP Team Members during the April 2011 IEP Team Meeting

A district must ensure that the IEP team for each student with a disability includes the student’s parent, 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 local educational agency (LEA) representative. A required IEP team member may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the member’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team member submits written input into the development of the IEP prior to the meeting.

On April 6, 2011, the IEP team conducted an annual review of the student’s IEP. In attendance at the meeting were the parent, the student’s uncle, an advocate, a regular education teacher of the child, a special education teacher of the child, an LEA representative, the student’s speech and language pathologist, and the student’s occupational therapist. The parent maintains that required members left during the IEP team meeting and were not properly excused from the meeting. However, the required IEP team members left the April 6, 2011, IEP team meeting only after the LEA representative had concluded the meeting and dismissed the IEP team participants. The district properly included all required IEP team members during the April 6, 2011, IEP team meeting.

Properly Determined the Student was No Longer Eligible for Special Education

When determining whether a child is a child with a disability, a district must first identify whether the child meets eligibility criteria for one or more impairments. The district must then consider whether, as a result of the impairment(s), the child needs special education and related services. In its consideration of the need for special education and related services, the district must identify the child’s needs that cannot be met through the regular education program as structured at the time the evaluation was conducted; modifications, if any, that can be made in the regular education program that will allow the child to access the general education curriculum and meet the educational standards that apply to all children; and additions or modifications, if any, that the child needs which are not provided through the general education curriculum.

The district conducted the student’s three-year reevaluation over the course of three meetings, which occurred on May 9, 2011; May 16, 2011; and May 31, 2011. The IEP team reviewed existing and new assessment information in all areas related to the suspected disabilities and considered information provided by the parents, which included two doctor’s reports. In making its decision, the IEP team considered the impairments of speech and language, autism, specific learning disability, and other health impairment. On May 9, 2011, the IEP team determined the student no longer met eligibility criteria as a student with a disability in the area of speech and language because the student no longer displayed delays in oral communication. The IEP team also determined that the student did not meet eligibility criteria as a student with a disability in the area of autism. The IEP team’s decision and the parent’s disagreement were properly documented in its evaluation report. On May 16, 2011, the IEP team determined that the student did not meet eligibility criteria for specific learning disability (SLD). Some team members, including the parent, felt that the student met eligibility criteria for SLD, which was documented in the evaluation report. On May 31, the IEP team determined that the student met eligibility criteria as a student with a disability in the area of other health impairment (OHI). The team determined the student did not need special education because the student’s needs could be met in regular education as structured. The parent disagreed with the decision, and the IEP team documented the parent’s disagreement and its decision properly in its evaluation report. A copy of the IEP team evaluation report was provided to the student’s parents following the meetings.

The department concludes that during the reevaluation, the district collected and the IEP team considered the information needed to determine whether the child is a child with a disability and properly documented its eligibility determination.

Properly Responded to a Parent’s Pupil Records Request

A district must permit parents, on request, to inspect and review their child's education records. The agency must provide copies of the records if the failure to provide the copies would effectively prevent the parent from exercising the right to inspect and review the records. The district must comply with a request without unnecessary delay, before any meeting regarding an IEP and, in no case, more than 45 days after the request had been made.

In March, 2011, the parent requested copies of the student’s current IEP and the previous two IEPs that were in effect for the student. The district provided copies of those documents to the parent. The parent then, via email, requested the student’s most recent IEP and eligibility determination records. The next business day, the teacher accessed and printed for the parent all of the student’s available pupil records that were stored on the district’s online network, which included copies of the student’s most recent IEP and eligibility determination, and provided those records to the parent.

Subsequently, at the April 6, 2011, IEP team meeting, the parent requested hard copies of the student’s pupil records from four-year-old kindergarten through April 6, 2011. On April 6, 2011, the student was in sixth grade. At the April 6, 2011 IEP team meeting, the district offered to examine the student’s pupil records file with the parent to aid the parent in identifying which records were not included in the packet of records that were provided from the online network. The parent declined and stated she wanted copies of all of the pupil records for her son. MPS staff directed the parent to contact and request the records from the MPS Office of Family Services where pupil records are housed and can be reviewed, copied, and paid for. The Office of Family Services did not receive a request from the parent for the pupil’s records. The district properly responded to the parent’s request for pupil records.

Properly Responded to a Parent’s Request for an Independent Educational Evaluation

A parent has a right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency. When a parent requests an IEE, the district must provide the parent information about where an IEE may be obtained and district criteria applicable for IEEs. Furthermore, if the parent requests an IEE, the district must, without unnecessary delay, either provide the IEE at public expense or initiate a due process hearing.

The parent requested an IEE at the April 6, 2011, IEP team meeting. However, the district’s reevaluation was not completed until May 31, 2011. The district is not required to provide an IEE prior to the completion of its evaluation. At the May 31, 2011 eligibility determination meeting, the parent requested an IEE. The district promptly responded, provided the required information, and the IEE has been completed. The district properly responded to the parent’s request for an IEE.

This concludes our review of this complaint, which we are closing. You may contact Allison Luczak, Special Education Team, at (608) 266-3126 if you have any questions about this decision or for technical assistance.

//signed CST 10/27/2011
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/al

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