IDEA Complaint Decision 99-011

On February 17, 1999 (letter dated February 15, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Madison Metropolitan School. 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 the child's education records, correspondence received from the complainant, and documents submitted by the district in response to the complaint. Department staff spoke by telephone with the complainant, the child's cognitive disabilities teacher, and the school principal.

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ISSUE:

Did the district, because of a lack of qualified personnel, fail to implement provisions of the child's 1998-99 IEP related to increasing attending and participating skills, increasing play and social skills, and increasing math skills?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
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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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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(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.
(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to do all of the following:
1. Advance appropriately toward the annual goals.
2. Be involved and progress in the general curriculum in accordance with par. (a) and participate in extracurricular and other nonacademic activities.
3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.
(d) An explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities.

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34 CFR 300.350 Individualized education program--accountability.

Each public agency must provide special education and related services to a child with a disability in accordance with an IEP. However, Part B of the Act does not require that any agency, teacher, or other person be held accountable if a child does not achieve the growth projected in the annual goals and objectives.

NOTE: This section is intended to relieve concerns that the IEP constitutes a guarantee by the public agency and the teacher that a child will progress at a specified rate. However, this section does not relieve agencies and teachers from making good faith efforts to assist the child in achieving the goals and objectives listed in the IEP.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Question 60

60. Is the IEP a performance contract?

No. Section 300.350 makes it clear that the IEP is not a performance contract that imposes liability on a teacher or public agency if a child with a disability does not meet the IEP objectives. While the agency must provide special education and related services in accordance with the IEP of each child with a disability, the Act does not require that the agency, the teacher, or other persons be held accountable if the child does not achieve the growth projected in the written statement.

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FINDINGS OF FACT:

This complaint concerns an eight-year-old autistic child with physical and developmental delays who is in first grade at Lowell Elementary School in the Madison Metropolitan School District. The child's 1998-99 IEP (effective 8/24/98 - 5/13/99) requires that he receive 32.5 hours per week of cognitive disabilities (CD) program services. The IEP states that "[o]ne-to-one support is required at all times to direct his attention, support his learning and generalization of skills, and maintain his safety."

During the current school year, the child has been receiving CD program services in a regular education classroom from the CD teacher and 2.5 licensed special education program aides. The special education aides work under the direction of the CD teacher. Generally, the CD teacher spends about half of the school day in the child's regular education classroom. In addition to the regular education teacher, there is, at a minimum, either two special education aides or one special education aide and the CD teacher in the regular education classroom to provide services to the child and six other children with disabilities. One special education aide or the CD teacher is with the child at all times to supervise him and provide instruction.

The child's 1998-99 IEP requires that staff working with the child receive training in the areas of autism, discrete trial format, and programming the child's augmentative communication device (ACD). One of the special education aides and the CD teacher had previously received training in those areas during the previous two school years. On August 25, 1998, the special education staff who work with the child attended an in-service training session conducted by the district's autism specialist on autism, discrete trial format and programming the child's ACD. From September 3 through 14, 1998, the three special education aides who work with the child spent one and a half to two hours per day for five days at the child's home with the child's mother and private autism therapists being trained in autism, discrete trial format and working with the ACD.

Early in the 1998-99 school year, the complainant expressed concerns to the district about the ability of one of the special education aides, whose first language is not English, to work effectively with the child. The district took several actions in response to those concerns. That special education aide received six weeks of additional training from the district's autism specialist in the areas of discrete trial format, programming the ACD and behavior management of an autistic child. The training sessions were one to three hours in length. In addition, the school principal regularly observed and provided support to the aide. From September through November 1998, the district limited that special education aide's work with the child. The aide supervised the child and assisted the child while another teacher directed the instruction. The district did not have the aide provide direct, one-to-one instruction to the child in the areas of phonics and math.

One of the goals in the child's 1998-99 IEP is that he will increase his attending and participation skills. The IEP includes five short-term instructional objectives related to the goal. The first objective states that the child will attend to material presented within three to five feet with cues and support by responding to questions using his ACD. The second objective states the child, when redirected, will stop behaviors that interfere with his learning. The third objective states that he will engage in proactive arousal regulating strategies. The fourth objective states that the child will engage in calming and relaxation activities as needed. The fifth objective states that the child will use his ACD to ask for clarification when needed. The CD teacher and/or special education aides work on these objectives with the child on a daily basis. Applying the IEP's evaluation criteria for each objective, the district indicates that the child has met the second, third, and fourth objectives. The district reports that the child has met the first objective when in a one-to-one environment, but only partially met the objective when in a group setting. Also, the district states that the child has met the fifth objective when working one-on-one but did not meet the objective when in a group setting.

Another IEP goal provides that the child will increase his play and social skills with peers. Three instructional objectives are listed for this goal. The first objective states that, during one-to-one discrete trial instruction, the child will learn to play with toys and other cooperative play activities and generalize this skill into the classroom. The second objective states that he will initiate interaction with his peers using his ACD to ask questions using their names. The third objective states that the child will engage in turn-taking roles with one or more peers. District staff work with the child on these objectives each day, except for playing with toys, which is done on a regular, but not daily, basis. The district reports that the child has partially met the three objectives.

Another goal in the child's IEP states that the child will increase his math skills, and three instructional objectives are related to the goal. The first objective states that the child will demonstrate the ability to rationally count up to 20 objects. The second objectives states that, when presented with manipulatives and visual cues, the child will demonstrate his understanding of number sentences one through ten on his ACD and using a calculator. The third objective states that he will demonstrate an understanding of attributes such as size, shapes, and amount concepts using his ACD. District staff have consistently worked with the child on these objectives. The district reports that the child has met the first and third objectives but has not met the second objective.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability as required by state and federal special education law. A district meets its obligation to provide FAPE, in part, by providing special education and related services that meet the standards of the department and are in conformity with an IEP. An IEP does not constitute a guarantee by a district that a child will progress at a specified rate. A district must make good faith efforts to assist a child in achieving the goals and objectives listed in the IEP.

In this case, the child's 1998-99 IEP requires that he receive 32.5 hours per week of CD program services and one-to-one support at all times. A licensed special education program aide or the CD teacher is with the child at all times during the school day to supervise him and provide instruction. Special education aides that work with the child received training from the district's autism specialist in the areas of discrete trial format, programming the child's ACD, and behavior management of an autistic child. In addition, the district provided several hours of additional training for one of the special education aides who works with the child and restricted her one-to-one instructional responsibilities with the child.

Three of the goals in the child's 1998-99 IEP are that he will increase his attending and participating skills, increase his play and social skills, and increase his math skills. The CD teacher and special education aides that work with the child have consistently worked with the child on the short-term instructional objectives related to those goals in the IEP. The district made good faith efforts to assist the child in achieving the goals and objectives by providing special training for staff that work with the child, including additional extensive training for one aide. In addition, the district limited an aide's one-to-one instructional responsibilities with the child in response to concerns about the aide's ability to instruct the child. There is no evidence that the district failed to implement provisions of the child's 1998-99 IEP. The complaint is not substantiated.

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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.

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/PTH
4/19/99
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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