IDEA Complaint Decision 99-013

On February 26, 1999 (letter dated February 26, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against 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 written statements from the complainant and the district.

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

ISSUE #1:

Did the district fail to have a current IEP for the child in effect during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes (Effective May 6, 1998)
Definitions.

In this subchapter:

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes (Effective May 6, 1998)
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

Section 115.787, Wisconsin Statutes (Effective May 6, 1998)
Individualized education programs.

(1) REQUIREMENT THAT PROGRAM BE IN EFFECT. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.

* * *

Wisconsin Administrative Code, Section PI 11.02 (Repealed October 1, 1998)
Definitions.

In this chapter:

* * *

(20) "Free appropriate public education" or "FAPE" means special education and related services which:

* * *

(b) Meet the statutes and rules enforced by the department; and (c) Are provided in conformity with a child's IEP.

* * *

Wisconsin Administrative Code, Section PI 11.05 (Repealed October 1, 1998)
Individualized education program.

* * *

(6) PURPOSE OF AN IEP. (a) A board shall provide special education and related services to a child consistent with the child's current IEP. A board may not provide special education and related services to a child unless the child has a current IEP.

* * *

34 CFR 300.342 When individualized education programs must be in effect.

* * *

(b) An IEP must--
(1) Be in effect before special education and related services are provided to a child;

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Ch. 111 Appendix C to Part 300--Notice of Interpretation

* * *

Section 300.342 When individualized education programs must be in effect.

* * *

3. In requiring that an IEP be in effect before special education and related services are provided, what does "be in effect" mean?


As used in the regulations, the term "be in effect" means that the IEP (1) has been developed properly (i.e. at a meeting(s) involving all of the participants specified in the Act (parent, teacher, agency representative, and, if appropriate, the child)); (2) is regarded by both the parents and agency as appropriate in terms of the child's needs, specified goals and objectives, and the services to be provided; and (3) will be implemented as written.

* * *

FINDINGS OF FACT:

During December 1994, the district identified the child whose education is the subject of this investigation as a child with an emotional disturbance (ED) disability. On September 23, 1997, the district implemented an IEP, which remained in effect until September 22, 1998. The district continued to provide special education and related services from September 23, 1998, through November 23, 1998.

On November 23, 1998, the district held an IEP team meeting and developed an IEP for the child. The regular education teacher, the special education teacher, an LEA representative, a special education teacher/mentor, and the student attended the meeting. The mother participated via telephone. Although the IEP was not developed until November 23, 1998, the IEP states that it applies from September 23, 1998, until September 23, 1999. The district implemented the IEP on November 23, 1998, and the IEP remains in effect.

CONCLUSION:

A school district has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. In order to provide FAPE, a district, in part, must provide a child with special education and related services in conformity with a current IEP.

From September 22, 1998, through November 23, 1998, the district provided services without a current IEP in effect for the child. The complaint is substantiated with regard to issue #1.

_______________

ISSUE #2:

Did the district fail to provide a free appropriate public education (FAPE) during the 1998-99 school year by repeatedly suspending the child from school?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes (Effective May 1, 1998)
Definitions.

In this subchapter:

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes (Effective May 1, 1998)
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

Section 115.787, Wisconsin Statutes (Effective May 1, 1998)
Individualized education programs.

* * *

(1) Requirement that program be in effect. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.

* * *

Section 120.13, Wisconsin Statutes
School board powers.

The school board of a common or union high school district may * * *:
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c)4. or (e) 4. or s. 119.25(2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health, or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester, or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under s. 118.16(4)(a).

* * *

Wisconsin Administrative Code, Section PI 11.01 (Repealed October 1, 1998)
Purpose.

(1) LEGISLATIVE INTENT. The legislature recognized that many children and youth, 3 to 21 years of age, have not experienced appropriate educational opportunities because comprehensive services were not available through all public schools which were commensurate with their EEN. Subchapter V, ch. 115, Stats., was enacted to ensure the identification of such needs and the development of services for children to appropriately serve these needs. School districts shall provide children with EEN who have attained the age of 3 with a free appropriate public education in accordance with this chapter.

* * *

Wisconsin Administrative Code, Section PI 11.02 (Repealed October 1, 1998)
Definitions.

In this chapter:

* * *

(20) "Free appropriate public education" or "FAPE" means special education and related services which:

* * *

(b) Meet the statutes and rules enforced by the department; and (c) Are provided in conformity with a child's IEP.

* * *

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--

* * *

(d) are provided in conformity with an IEP that meets the requirements of ss. 300.340-300.350.

ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

U.S. Department of Education, Office of Special Education Programs (OSEP) Memorandum 95-16, April 26, 1995, 22 IDELR 531.

A series of short-term suspensions in the same school year could constitute a change in placement. Factors such as the length of each suspension, the total amount of time that the student is excluded from school, the proximity of the suspensions to each other, should be considered in determining whether the student has been excluded from school to such an extent that there has been a change in placement. This determination must be made on a case-by-case basis.

* * *

Department of Public Instruction, Learning Support: Equity and Advocacy Information Update Bulletin No. 94.10, August 1994

5. Is there a limit on the total number of days a pupil with EEN may be suspended during the school year?

Yes. While the law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year, there are limitations with regard to a district's ability to suspend a child with EEN. A series of short suspensions may create an exclusionary pattern that constitutes a significant change in placement. If a series of suspensions creates such a pattern of exclusion, the district has denied the child a free appropriate public education (FAPE) in violation of state and federal law.

6. How may a district ensure that it does not deny FAPE to a child with EEN through a pattern of suspensions that exclude the child?

A district should take steps to ensure the child's educational program addresses his or her unique needs, including educational interventions to address inappropriate behaviors arising from the child's disability. If a pattern of disciplinary suspensions emerges, then the district should review the child's IEP and placement offer. The department recommends that the district conduct an IEP meeting no later than the child's seventh cumulative day of suspension during the term of the current IEP. The department recommends that the board representative at the meeting be someone other than the individual issuing the suspensions.

* * *

FINDINGS OF FACT:

During the 1998-99 school year, the child has attended Sholes Middle School. Between August 26, 1998, and March 25, 1999, the child was enrolled in school for 132 days.

During this time period, the district dealt with many of the student's behavioral problems by suspending him from school. The district suspended the child for a total of 30.5 days. No suspension was for more than five consecutive days. The student was suspended from school on the following dates:

September 16, 1998 November 18, 1998 January 13, 1999
September 17, 1998 November 19, 1998 January 15, 1999
September 18, 1998 November 20, 1998 January 19, 1999
October 5, 1998 December 3, 1998 January 20, 1999
October 6, 1998 December 4, 1998 January 26, 1999
October 14, 1998 December 7, 1998 January 27, 1999
October 15, 1998 December 16, 1998 January 28, 1999
October 21, 1998 December 17, 1998 March 8, 1999
October 22, 1998 January 4, 1999 March 17, 1999
October 23, 1998 January 12, 1999 March 18, 1999
November 11, 1998

During the current school year, the child received no in-school suspensions.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with a FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet the requirements of the statutes and rules enforced by the department, including those related to the suspension of pupils.

State and federal law governs procedures relating to the suspension of students. The law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year; however, there are limitations with regard to a district's ability to suspend a child with a disability. A child with a disability may be suspended for up to five days or for up to ten consecutive days if a notice of expulsion has been sent to the child's parents. A series of short suspensions may create an exclusionary pattern that constitutes a change in placement. If a series of suspensions creates a pattern of exclusion, the district has denied the child a FAPE in violation of state and federal law. Factors to consider in determining whether the student has been excluded from school to such an extent that there has been a change in placement include the length of each suspension, the total amount of time that the student is excluded from school, and the proximity of the suspensions to each other. Such determinations must be made on a case-by-case basis.

During the current school year, the school district suspended the child for 23.1% of the time school was in session. Five periods of suspension were for three consecutive days. Seven periods of suspension were for two consecutive days. The suspensions occurred in close proximity and occurred in five out of six months. These suspensions create a pattern of exclusion that constitutes a change in the child's educational placement. There is a violation with regard to issue #2.

________________

ISSUE #3:

the district fail to follow required procedures when it changed the child's placement during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.79
Educational placements. (Effective May 6, 1998)

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

* * *

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

* * *

Wisconsin Statutes, Section 115.792
Procedural Safeguards (Effective May 6, 1998)

(1) SAFEGUARDS ENSURED.

* * *

(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.
(2) NOTICE. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78 (4).

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Question #51

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. Changes in the amount of services listed in the IEP cannot be made without holding another IEP meeting....

FINDINGS OF FACT:

The November 23, 1998, IEP provided that the child would participate in regular education classrooms for all classes with special education support in history and science. The IEP also required special education teacher support to implement the child's behavior plan.

Between November 23, 1998, and the beginning of the second semester (January 4, 1999), district personnel and the child's mother met informally to discuss the child's behavior and progress. Because the child needed small group academic instruction and behavior support, the district and the mother decided the child should begin the second semester in a self-contained setting for the child's four academic classes. These meetings were not IEP team meetings.

On January 4, 1999, the district placed the child in a self-contained special education classroom for his academic classes. The district did not convene an IEP team meeting before it changed the special education and related services provided to the child. The district did not provide written notification to the parent of its intent to change the child's provision of a FAPE before the change occurred.

CONCLUSION:

A district meets its obligation to provide a FAPE to a child, in part, by providing special education and related services consistent with the provisions in a current IEP. A district must hold an IEP meeting to change the provisions of the IEP. A district must provide an educational placement to implement the IEP. Whenever a district proposes to change the educational placement and the provision of a FAPE to a child, the district must send the child's parent a proper notice of its intent within a reasonable amount of time before the change is implemented.

The child's IEP provides that he will participate in regular education classrooms for his academic classes. On January 4, 1999, the district moved the child from regular education classrooms to a self-contained classroom during his academic classes. This constitutes a change in placement and the provision of a FAPE.

The district did not hold an IEP team meeting to change the provisions of the child's IEP. The district did not notify the parent of its intent to change the child's placement and provision of a FAPE before the change occurred. The complaint is substantiated with regard to issue #3.

_______________

DIRECTIVE:

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

  1. the district has a current IEP in effect for every child with a disability (issue #1);
  2. the district does not deny children a FAPE by repeatedly suspending them from school (issue #2);
  3. the district must convene an IEP meeting to consider whether additional special education services should be provided to the child as a result of the 30.5 days of denied services (issue #2); and
  4. the district sends the child's parents a notice of its proposal that meets the requirements in s. 115.782, Wis. Stats., a reasonable amount of time before the change in placement and provision of a FAPE, and the district conducts an IEP meeting a reasonable amount of time before the action (issue #3).

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
4/27/99
_______________________________________________
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