On February 5, 1999 (letter dated February 4, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Montello School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.
Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. As part of this investigation, department staff reviewed documents and relevant education records of the child submitted by the district, as well as a binder of documents submitted by the child's parents. Department staff spoke by telephone with the complainant, with the attorney who is representing the district regarding this complaint, and with an assistant director of special education for Cooperative Educational Service Agency 5 which provides services to the district.
APPLICABLE STATUTES AND RULES:
Section 115.76, Wisconsin Statutes
In this subchapter:
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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.
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Section 115.77, Wisconsin Statutes
Local educational agency duties.
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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:
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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.
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Section 115.787, Wisconsin Statutes
Individualized education programs.
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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:
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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child * * *.
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34 CFR 300.8 Free appropriate public education.
As used in this part, the term "free appropriate public education" means special education and related services that--
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(d) are provided in conformity with an IEP that meets the requirements of ss. 300.340-300.350.
34 CFR 300.16 Related services.
(a) As used in this part, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
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34 CFR 300.346 Content of individualized education program.
(a) General. The IEP for each child must include--
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(3) A statement of the specific special education and related services to be provided to the child * * *.
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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:
34 CFR Part 300, Appendix C, Question 46
46. Is the IEP a commitment to provide services -- i.e., must a public agency provide all of the services listed in the IEP?
Yes. The IEP of each child with a disability must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act.
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FINDINGS OF FACT:
The child whose education is the subject of this complaint is a nine-year-old resident of the district who is a child with a disability. The child's October 6, 1998, individualized education program (IEP) contains several provisions which address her health care needs. The IEP indicates that the procedures and protocols in the child's health care plan are attached to, and are included in, the IEP. Additional notations relating to the child's health care appear within the IEP. These notations include that 1) district staff will not contact the child's medical providers without prior parental consent, 2) the district will maintain strict confidentiality and not reproduce third party medical records, and 3) the parents will be notified of district consultations with outside medical staff. Correspondence from the parents to the district emphasize their preference that district staff are to strictly circumscribe their request for, and sharing of, information regarding the student. The IEP also requires the district to provide the child the related service of school health services pursuant to the health care plan in the IEP. The letter of complaint alleges that, as part of the child's health care plan, an agreement had been reached that backup nursing services would be provided. There is no specific provision in the IEP requiring that the district arrange for backup nursing assistance in the event the school nurse is not available to carry out the health care plan.
Prior to the beginning of the 1998-99 school year, the district hired a registered nurse to provide the required health care services. The parents have consented to the provision of nursing assistance only from this school nurse. The district also entered into a contract with a private nursing service to train the school nurse in how to meet the child's health care needs, as described in the IEP, and to provide backup nursing services if needed. The contract was effective from August 26, 1998, to November 25, 1998. Prior to the end of this contract, the district also began contacting other private nursing care providers to arrange for backup nursing services to commence after November 25. Although the district received several promising responses, backup nursing services were not available beginning November 26, 1998.
On January 15, 1999, the district entered into a service agreement with a nursing service which had not previously provided services to the child. This agreement anticipated the absence of the school nurse on January 27, 1999, to attend an all-day training course for school nurses sponsored by the department. The agreement includes two days of training for the nursing agency staff concerning the child's health care needs and one day of provision of health care service to the child in school on January 27. Also on January 15, 1999, the district wrote to the child's parents requesting their consent for the new health care agency to provide nursing services to their daughter. Separate consent was requested because the parents had consented to the provision to their daughter of nursing assistance only by the school nurse. Consistent with common practice in the field, the new health care agency would not provide services to the child without parent consent. The letter to the parents indicates that consent was needed by 4:00 p.m. the next Monday, January 18 and that if consent is not given, their child would be unable to attend school on January 27 because there would not be a nurse available. The child's mother received this letter on January 15, 1999. The parent had difficulty obtaining information about the agency prior to the January 18 deadline, in part because the district's letter identifies the agency incorrectly. The parents believed that they had insufficient information to make a decision regarding consent, and they did not consent.
In a letter dated January 22, 1999, the agency withdrew its agreement to provide nursing services. In a letter of the same date, the district notified the parent that, because the parents did not consent to the agency providing care, the training for nursing agency staff was cancelled. The letter also notified the parents that the district bus would not pick the child up for school on January 27. The district's nurse attended the training on January 27, 1999. The child was not allowed to attend school on that day because the required nursing assistance was not available. On February 9, 1999, a new IEP was written which describes the district's responsibilities in the event the district's nurse is not available to carry out the child's health care plan. The parents requested a hearing to challenge the health-related provisions set forth in that IEP.
An LEA must provide special education and related services to a child with a disability consistent with a proper IEP. The IEP must specify special education and related services to meet the child's needs. Related services include school health services provided by a nurse.
The child's IEP dated October 6, 1998, which was in effect on January 27, 1999, requires the provision of related services of a nurse consistent with the health care plan attached to the IEP. State statutes and rules relating to nursing care in general do not specifically address the issue of when consent for nursing services is required. (State statutes do permit school staff to administer drugs to students when parents consent in writing. See 118.29 Wis. Stats.) The department recommends that when the administration of special health care procedures requires parent consent, written parental permission should "be received in writing before the procedure or treatment can be administered in school." (See "School Nursing and Health Services: A Resource and Planning Guide," WDPI 1998, p. 125.) Generally, private nursing agencies require parent consent before permitting their nursing staff to provide services to a child. The child's parents, in this instance, gave consent which permitted only the school-employed nurse to provide the nursing services in the child's IEP. The parents' insistence upon the provision of nursing care only by a specific nurse made more difficult the task of arranging for the backup nursing assistance which is a central factor in this complaint.
As a consequence of the agreement between the parents and the district that the child would be provided nursing assistance by a specific nurse, the district attempted to secure the parents' agreement for other nurses to provide the required services when the district's own staff nurse was not available. The district tried unsuccessfully for several months to arrange for backup nursing services for the child. The district, following its arrangement of nursing services in January, promptly wrote to the parents to request their permission to have new nurses trained and to agree to have agency nurses implement their daughter's health care plan during the absence of the district's nurse. The time available to the parents to make this decision was limited. The parents would not agree within the time period provided.
The provider withdrew its agreement to participate in the training and provide nursing assistance to the child, the required training for the nurses was cancelled, and the child was unable to attend school during the one-day absence of the school's nurse. Although the parents' failure to agree to the provision of nursing services to their daughter by the newly identified nursing agency had a direct impact on this outcome, this did not change the district's responsibility to this student. The district did not make available the services required by the child's IEP. The complaint is substantiated. However, the district took corrective action to address this issue on February 9 by amending the IEP to describe the district's responsibilities when the district's nurse is not available. A hearing is pending regarding the propriety of the health-related provisions in that IEP.
This concludes our investigation of this complaint, and we are closing this complaint investigation. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy