IDEA Complaint Decision 99-009

On February 11, 1999 (letter dated February 11, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public 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. In investigating this complaint, the department reviewed written materials presented by the complainant and the school district.

===========================

ISSUE:

Did the district fail to offer the child a placement within the required time period during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.78, Wisconsin Statutes (Effective May 6, 1998)
Individualized education program team; timeline.

* * *

(1m) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777.

* * *

(2) DUTIES OF THE TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under s. 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.
(b) Develop an individualized education program for the child under s. 115.787.
(c) Determine the special education placement for the child under s. 115.79.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under s. 115.777....
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.

* * *

FINDINGS OF FACT:

On November 9, 1998, the child's mother referred the child for an evaluation because of "speech problems and possible retardation." She filled out the referral forms provided by the district in the office at Longfellow Elementary School and gave them to the secretary. The building coordinator was not in the office that day but received the forms from the secretary within the next two days. According to the building coordinator, the forms were filled out "incorrectly." The building coordinator filled out a new set of forms, and the mother signed the forms on November 11, 1998.

The school district acknowledged receipt of the referral on November 11, 1998. The referral form commencing evaluation was signed by the building coordinator November 11, 1998. An IEP team was assigned and included a regular education teacher, a special education teacher, a representative of the local education agency, the school psychologist, the school social worker, and a speech pathologist. The parent consented to the evaluation on November 11, 1998.

On November 24, 1998, the district sent the parents an invitation to a meeting of the IEP team to determine initial eligibility for special education. The meeting was scheduled for January 21, 1999.

The IEP team met on January 21, 1999, and reviewed considerable medical and behavioral information. The team made a preliminary finding of no disability. The mother and advocate requested additional time to attempt to secure additional information. Another IEP team meeting was tentatively scheduled for February 2, 1999. The department stated the mother and advocate assured the team that if the information was not available by the February 2, 1999, meeting, the mother would sign a request to extend the 90-day timeline. The advocate stated neither he nor the mother agreed to sign an extension.

On January 25, 1999, the district sent the parents an invitation to the continued meeting of the IEP team. The meeting was scheduled for February 2, 1999.

On January 28, 1999, the diagnostic teacher called the parent and left a message on an answering machine. She asked the parent to share with her any information regarding the status of the additional information. There was no response from the parent or the advocate.

On January 29, 1999, the advocate presented a letter to the district. The letter reads:

Dear [Division of Special Services Administrator]:

I got a call from [the parent] last night with two requests. I will get to her house over the weekend to get her signature but this is a heads up to you.

1. Mom is having difficulty getting the paperwork from the Doctors about [the child's] medical problems. Therefore please ask Patty Engbring to cancel the adjourned M-Team for next week. Mother will take responsibility to call Patty when Mom has the papers needed for the M-Team.

* * *

On February 1, 1999, the diagnostic teacher left a message on the parent's answering machine. She asked the parent to inform her of the status of the additional information; the diagnostic teacher also informed the parent that an extension would be necessary. Neither the parent nor the advocate returned the phone call.

On February 4, 1999, the diagnostic teacher left a message on the parents' answering machine. She asked the parent about an extension of the 90-day timeline. Neither the parent nor the advocate returned the phone call.

On February 9, 1999, the school social worker met with the parent. The parent refused to sign the extension and said that the advocate would have to sign it. When the parent was informed that she was the person from whom the district was required to get agreement for an extension, the parent indicated she would not sign it. She told the social worker to speak with the advocate.

The 90-day placement offer deadline was February 7, 1999.

On February 11, 1999, the district wrote the department. The letter requests a 30-day extension for the IEP evaluation process.

On February 16, 1999, the district sent the parents an invitation to a meeting of the IEP team scheduled March 4, 1999.

On February 22, 1999, the department responded to the district's February 11, 1999, letter. The department denied the extension on the grounds that MPS requested the extension after the 90-day deadline expired.

On March 4, 1999, the district held an IEP team meeting. Neither the parent nor the advocate attended. The IEP team determined that the child does not have a disability under IDEA.

CONCLUSION:

Any person who believes that a child is a child with a disability may submit a referral to a school district. After receiving a referral, a district is required to send a child's parent a placement offer within 90 days, unless the district requests and receives parental agreement to an extension. If the parent does not agree to an extension, the school district may request an extension from the Department of Public Instruction, Division for Learning Support: Equity and Advocacy. The school district must ask for the extension before the 90-day deadline expires. The school district must inform the department of the reasons for the request. The department may grant a specific extension of time beyond the 90-day period if the school district shows that it has acted in good faith and that there is good cause to grant an extension. If the department grants an extension, it must notify the parent of the extension and the reasons for granting it.

On November 9, 1998, the mother referred her son to the district for an evaluation by filling out a referral form in the Longfellow Elementary's office; the form was in writing and signed by the mother. After filling out the form, she gave it to the secretary. The 90-day time limit began on November 9, 1998, the day the mother gave the written referral to the school, and expired February 7, 1999. The district did not send a notification of evaluation decision to the parents until March 4, 1999. The district did not receive permission from the parents nor from the department to extend the 90-day timeline. There is a violation in this regard.

_______________

DIRECTIVE:

The Milwaukee Public School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district sends a child's parent a placement offer within 90 days, unless the district requests and receives parental agreement to an extension.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

_______________

This concludes our investigation of this complaint. 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.

Please be advised that under 34 CFR 300.661(d) either the school district or the complainant may request a review of these findings by the Secretary of the United States Department of Education. Requests for secretarial review should be submitted to:

Judith Heumann, Assistant Secretary
Office of Special Education and Rehabilitative Services
U. S. Department of Education
Switzer Building
330 C Street, S.W.
Washington, DC 20202

signed JSP
4/12/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

crj

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