IDEA Complaint Decision 99-010

On February 18, 1999 (letter dated February 18, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. 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 department staff reviewed communications from the complainant, the child's pupil records, a written statement from the district and the district's registration and attendance procedures. Department staff interviewed the complainant, the child's mother, the district director of parent and student services, a special education supervisor, a school social worker, the designated vocation education instructor, and the principal of the child's school.

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ISSUE:

Did the district, during the second semester of the 1998-99 school year, deny a student a free appropriate public education (FAPE) when the district changed the student's school of attendance and did not provide an educational placement to implement the child's individualized education program?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.76
Definitions.

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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(9) "Individualized education program" means a written statement for a child with a disability that is developed, reviewed and revised in accordance with s.115.787.

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Wisconsin Statutes, Section 115.77
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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Wisconsin Statutes, Section 115.78
Individualized education program team; timeline.

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(lm) Appointment of Team. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777.

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(2) Duties of 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.

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Wisconsin Statute, Section 115.79
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program....

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Wisconsin Statutes, Section 115.792
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.

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Wisconsin Statutes, Section 118.15
Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

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Wisconsin Statutes, Section 118.16
School attendance enforcement.

(1) In this section:
(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and s. 118.15 for either of the following:
1. Part or all of 5 or more days out of 10 consecutive days on which school is held during a school semester.
2. Part or all of 10 or more days on which school is held during a school semester.

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(c) "Truancy" means any absence of part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of s. 118.15.
(2) The school attendance officer:
(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under s. 118.15.

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(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under s. 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

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4. ¿(cr) After the notice required under par. (cg) has been given, shall notify the parent or guardian of a habitual truant of the habitual truant's unexcused absences as provided in the plan under s. 118.162 (4) (a). After the notice required under par. (cg) has been given, par. (c) does not apply.

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(5) Except as provided in sub. (5m), before any proceeding may be brought against a child under s. 938.13 (6) for habitual truancy or under s. 938.125 (2) or 938.17 (2) for a violation of an ordinance enacted under s. 118.163 (2) or against the child's parent or guardian under s. 118.15 for failure to cause the child to attend school regularly, the school attendance officer shall provide evidence that appropriate school personnel in the school or school district in which the child is enrolled have, within the school year during which the truancy occurred, done all of the following:
(a) Met with the child's parent or guardian to discuss the child's truancy or attempted to meet with the child's parent or guardian and received no response or were refused.
(b) Provided an opportunity for educational counseling to the child to determine whether a change in the child's curriculum would resolve the child's truancy and have considered curriculum modifications under s. 118.15 (1) (d).
(c) Evaluated the child to determine whether learning problems may be a cause of the child's truancy and, if so, have taken steps to overcome the learning problems, except that the child need not be evaluated if tests administered to the child within the previous year indicate that the child is performing at his or her grade level.
(d) Conducted an evaluation to determine whether social problems may be a cause of the child's truancy and, if so, have taken appropriate action or made appropriate referrals.
(5m) Subsection (5) (b), (c) and (d) does not apply if the school attendance officer provides evidence that appropriate school personnel were unable to carry out the activity due to the child's absences from school.
(6) If the school attendance officer receives evidence that activities under sub. (5) have been completed or were not completed due to the child's absence from school as provided in sub. (5m), the school attendance officer may file information on any child who continues to be truant with the court assigned to exercise jurisdiction under chs. 48 and 938 in accordance with s. 938.24. Filing information on a child under this subsection does not preclude concurrent prosecution of the child's parent or guardian under s. 118.15 (5).

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Wisconsin Statutes, Section 118.162
Truancy committee and plan.

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(4) Not later than September 1, 1989, each school board shall adopt a truancy plan which shall include all of the following:
(a) Procedures to be followed for notifying the parents or guardians of the unexcused absences of habitual truants under s. 118.16(2)(cr) and for meeting and conferring with such parents or guardians.
(b) Plans and procedures for identifying truant children of all ages and returning them to school, including the identity of school personnel to whom a truant child shall be returned.
(c) Methods to increase and maintain public awareness of and involvement in responding to truancy within the district.
(d) The immediate response to be made by school personnel when a truant child is returned to school.
(e) The types of truancy cases to be referred to the district attorney for the filing of information under s. 938.24 or prosecution under s. 118.15(5) and the time periods within which the district attorney will respond to and take action on the referrals.
(f) Plans and procedures to coordinate the responses to the problems of habitual truants, as defined under s. 118.16 (1) (a), with public and private social services agencies.
(g) Methods to involve the truant child's parent or guardian in dealing with and solving the child's truancy problem.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Individuals with Disabilities Education Act State Complaint No. 91-019, January 29, 1992.

Therefore, when a child with EEN has a significant number of absences and/or has been withdrawn from school the district has an obligation to take action to provide the child with FAPE within a reasonable amount of time. Alternative methods of providing FAPE are available to the district. The district may modify the child's educational program or if the child is unable to attend school for physical or emotional reasons, arrange for homebound instruction. If the parent refuses to make the child available to the school, the district should initiate truancy proceedings against the parent.

Individuals with Disabilities Education Act State Complaint No. 99-005, April 23, 1999.

When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child with FAPE.

FINDINGS OF FACT:

The child whose education is the subject of this complaint is 16 years old and has a cognitive disability. Between August 26, 1998, the beginning of the 1998-1999 school year, and December 10, 1998, the child was present at school on only 6 of 71 school days. The child was absent and unexcused on 68 days. On September 4, 1998, and October 9, 1998, the district sent notices to the child and her mother that the child was absent from one or more classes on at least three consecutive days. In October 1998, the child's mother received from the high school a habitual truancy letter regarding the child. On October 14, 1998, the social worker assistant left a calling card at the child's home. On the same day the child's mother called the social worker and discussed the child's classes. On November 18, 1998, the school social worker spoke with the child's mother regarding the child's IEP.

On December 10, 1998, the district held an individualized education program (IEP) team meeting with the child, the child's mother and the mother's advocate. The child's December 10, 1998, IEP includes a behavior plan to address the child's school absences. The IEP team determined that the child's IEP services would be delivered at the child's current placement. A notice of educational placement dated January 4, 1999, was sent to the parent. The child attended the school on only two days after the December 10, 1998, IEP meeting.

In early January 1999, the parent advocate communicated with the child's mother, a special education supervisor, and a special education regional administrator about the child's attendance and a possible change of educational placement to a satellite school. The advocate gave the special education administrator a letter from the child's mother, dated January 27, 1999, as written permission for the child to attend the satellite school. On January 29, 1999, the district sent the child and her mother a notice that the child was absent from one or more classes on at least three consecutive days.

In early February 1999, the special education supervisor discussed with the child's mother three educational placement options, which could be considered by an IEP team. The district did not schedule an IEP team meeting. On February 17, 1999, the parent advocate and the child's mother attempted to enroll the child at one of the schools discussed with the supervisor. The school did not enroll the child. On February 24, 1999, the advocate contacted a different special education supervisor and requested an IEP team meeting. The student did not attend school during February 1999, and the school did not record the child's absences.

On March 2, 1999, an IEP team placed the child at a new school to implement the child's December 10, 1998, IEP. The placement was effective on March 2, 1999. On March 1, 1999, the child withdrew from her school of attendance and on March 2, 1999, entered the new school. The district's "demographic/map/school information" for the child indicates that the child continued to have an educational placement in the same high school until March 1, 1999. The district continued to provide the child an educational placement during the period addressed in this complaint.

The "Attendance Procedures For The Milwaukee Public Schools" states:

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6. The social worker should respond to the school within three weeks of the date of the referral. If truancy continues, the school social worker and school must initiate a referral to the District Attorney's office through the Department of Student Services. The student is placed on inactive status during this period of time. (emphasis added)

The district did not refer the matter of the child's truancy to the district attorney.

CONCLUSION:

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. When a child with a disability has a significant number of absences, the district has a duty to take action timely to provide the child FAPE. The district may modify the child's educational program or placement to address the absences. If the parent fails to cause their child to attend school regularly, a school district must implement its truancy plan. Each school board must adopt a truancy plan, which include the type of truancy cases to be referred to the district attorney. The MPS truancy procedures require the school social worker to refer each truant student to the district attorney through the district's department of student services when truancy continues after school interventions. When a parent request a change of educational placement, the district must respond timely by conducting an IEP team meeting or by sending a notice of its refusal.

In October 1998 the district determined the child to be an habitual truant. In December 1998, when the district revised the child's IEP, the district included a behavior plan that addresses school absences. After December 1998, the child continued to be truant. The district did not timely refer the student to the district attorney, pursuant to district procedures. The department concludes that the district did not provide the child with FAPE in a timely manner.

In January and February 1999, the parent and advocate requested a new placement for the child. The district did not review the child's placement until March 2, 1999. The district did not timely conduct an IEP meeting to review the child's placement or send a notice of the district's refusal. The complaint is substantiated.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district will:

  1. within a reasonable amount of time after the district learns that a child is not attending school, take steps consistent with its truancy procedures to provide the child with FAPE,
  2. either timely conduct an IEP meeting or send the parent a notice of its refusal when the parent request a change of educational placement, and
  3. conduct an IEP meeting to consider whether the child requires additional services because of the delay in providing FAPE.

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 the department has approved it.

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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.

signed JSP/PTH
5/19/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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