IDEA Complaint Decision 99-016

On March 1, 1999 (letter dated February 24, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Racine Unified 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. During this investigation, department staff reviewed the relevant education records of the students who were the subject of the complaint and the district's response to the complaint. As part of this investigation, department staff personally interviewed the district's director of special education. Department staff also spoke by telephone with special education supervisors, special education teachers, school social workers, a speech therapist, an occupational therapist, and the executive director of the REA.

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ISSUE #1:

During the 1998-99 school year, did district administrative staff require individualized education program (IEP) teams to submit special education evaluation reports for approval and improperly overrule IEP team determinations related to evaluation?

ISSUE #2:

During the 1998-99 school year, did the district fail to include parents when determining whether the child required additional testing as part of an evaluation?

APPLICABLE STATUTES AND RULES:

Individuals with Disabilities Education Act, Amendments of 1997
Sec. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

(a) EVALUATIONS AND REEVALUATIONS--
(1) INITIAL EVALUATIONS--
(A) IN GENERAL--A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part.

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(b) EVALUATION PROCEDURES--

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(2) CONDUCT OF EVALUATION-- In conducting the evaluation, the local educational agency shall --
(A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

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(4) DETERMINATION OF ELIGIBILITY-- Upon completion of administration of tests and other evaluation materials --
(A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child . .

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(c) ADDITIONAL REQUIREMENTS FOR EVALUATION AND REEVALUATIONS--
(1) REVIEW OF EXISTING EVALUATION DATA-- As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d)(1)(B) and other qualified professionals, as appropriate, shall -
(A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and
(B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed . . .

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(d) INDIVIDUALIZED EDUCATION PROGRAMS--
(1) DEFINITIONS--As used in this title:

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(B) INDIVIDUALIZED EDUCATION PROGRAM TEAM--The term "individualized education program team" or "IEP Team" means a group of individuals composed of--
(i) the parents of a child with a disability;

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Section 115.76, Wisconsin Statutes
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:
(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services . . .

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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 115.78, Wisconsin Statutes
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. Each team shall consist of all of the following:
(a) The parents of the child.

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(d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency.

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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.

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Section 115.782, Wisconsin Statutes
Evaluations.

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(2) Conduct of evaluation. (a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following:
1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities.

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(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.
b. The present levels of performance and educational needs of the child.
c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.
d. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable, annual goals specified in the child's individualized education program and to participate, as appropriate, in the general curriculum.

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(3) Determination of eligibility for special education. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability.

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(b) If the individualized education program team determines that a child is a child with a disability, the team shall prepare an evaluation report that includes documentation of determination of eligibility. The local educational agency shall ask each individualized education program team participant if he or she wants a copy of the evaluation report or additional time before the individualized education program team develops the child's individualized education program.

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(4) Reevaluations. (a) A local educational agency shall ensure that the individualized education program team does all of the following:
1. Evaluates a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.
2. Reevaluates a child with a disability in accordance with this section if the local educational agency determines that conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Learning Support/Equity and Advocacy Information Update, Bulletin 97.06, September 1997

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Effective June 5, 1997, a local education agency (LEA) must provide a child's parent an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child.

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Department of Public Instruction, Learning Support/Equity and Advocacy Information Update, Bulletin 98.10, September 1998

The Department of Public Instruction has received many questions relating to the changes in federal law which became effective in June of 1997 and the changes in state law which became effective on May 6 of this year. Department staff have compiled answers to 30 of the most frequently asked questions which are included in this Bulletin.

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1. What is the parent's role in evaluation?

Recent changes to state and federal special education laws have expanded the role of parents in evaluating children with disabilities. Parents are now part of IEP teams that evaluate children. Parents are expected to be equal participants in any meeting with respect to the evaluation of children with disabilities.

At the beginning of the evaluation process, the parents provide information to the rest of the team and participate in the team's review of existing evaluation data to decide what, if any, additional tests are needed. If a child with a disability is being reevaluated, the parents have the right to have the child tested to determine if the child continues to have a disability, even if the team has decided that no testing is needed. After all necessary data is collected, the parents participate with the rest of the team in deciding whether the child has or continues to have a disability and what the educational needs of the child are.

2. Do parents have a voice in determining what assessments, including tests, are used and how they are used?

Parents, as participants on the IEP team, assist in identifying what additional data, if any, are needed to determine if a child has or continues to have a disability and what the child's educational needs are [s. 115. 782 (2)(b)(2), Wis. Stats.; s. 614(c)(1), IDEA Amendments 1997, 20 U.S.C. s. 1414(c)(1)].

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18. Are there any provisions for the director to approve the evaluation report as in the past with the M-Team report?

No. The LEA has the responsibility to provide children with disabilities with a free appropriate public education (FAPE). The LEA meets this responsibility, in part, by ensuring that its staff follow the requirements of special education law. For example, the LEA must ensure that the IEP team considers the eligibility criteria and produces an evaluation report which contains documentation to support its conclusions. The LEA may assign oversight responsibility to the director to ensure the law is followed. The director cannot, however, unilaterally revise or override the IEP team's findings and determinations.

19. What is the LEA to do if the participating school staff on the IEP team cannot reach consensus?

State law specifies that the IEP team "shall" evaluate to determine a child's eligibility or continued eligibility for special education and related services and the educational needs of the child. In addition, it "shall" develop an IEP for the child and determine the special education placement of the child [s. 115.78(2), Wis. Stats.].

When school staff who are participants on an IEP team are unable to reach consensus, they are, in effect, not able to make the required determination with regards to the eligibility, educational needs of the child, IEP content, or placement. This may indicate a need to add more individuals to the IEP team, gather more assessment data or information in order to make a determination, appoint a different IEP team, and/or implement a staff development strategy which focuses on building consensus and working as a team.

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FINDINGS OF FACT:

Issue #1 concerns 12 children with disabilities who attend Garfield Early Childhood, West Ridge Elementary, Wind Point Elementary, Janes Elementary, and Starbuck Middle School in the Racine Unified School District. After receiving a referral for an evaluation or initiating a reevaluation, the district appointed a multidisciplinary team (M-team) to evaluate each child during the 1998-99 school year. The M-team evaluated each child and then held a meeting to determine whether the child was eligible for special education and related services. The district did not include parents on the M-team. Some of the children's parents attended their child's M-team meeting, but they did not participate on an equal basis in the determination of eligibility.

Special education supervisors did not attend the M-team meetings held for 11 of the children, and no local educational agency (LEA) representatives participated in the determination of eligibility at the meetings. After the meetings, the evaluation reports were submitted to special education supervisors for approval. Special education supervisors approved the evaluation reports for 11 of the children.

The M-team meeting for one of the students was reconvened after one of the M-team members asked a special education supervisor to add a cognitive disabilities (CD) diagnostician to the M-team to conduct additional testing. The director of special education approved the supervisor's request for additional CD testing. The special education supervisor attended the reconvened M-team meeting on March 5, 1999. At the meeting, a majority (four) of the M-team members indicated on the evaluation report that the child has the disability of emotional disturbance (ED) but does not have a cognitive disability (CD). Two of the M-team members disagreed with the majority, indicating that the child has both disabilities. The M-team did not reach agreement at the meeting, and the special education supervisor did not approve or disapprove the evaluation report at the meeting. Sometime after the meeting, the disability of CD was added to the child's M-team evaluation report. The special education supervisor approved the report, indicating that it had been agreed to by less than a majority of the M-team.

In issue #2, the complainant alleges that the parents of five children were not included in determining that additional testing was required. Only two of the students required additional testing during their evaluations. During one child's evaluation, the district determined that the child required additional testing in the area of other health impairment (OHI). On October 28, 1998, the district informed the child's parent that additional testing would be conducted. The child's parent did not participate in the determination that the child required additional testing. As indicated previously, additional CD testing was conducted for another child after the director of special education approved a supervisor's January 12, 1999, request for additional testing. That child's parents did not participate in the determination to add CD testing.

The district issued a new Special Education Program and Procedure Manual dated February 1999 that went into effect on April 19, 1999, after staff training sessions were held on the new procedures. The manual makes changes in the district's special education procedures, including changes to the evaluation process. For example, an individualized education program (IEP) team that includes the parents of the child, rather than an M-team, will now be responsible for evaluating a child to determine the child's eligibility for special education and related services.

CONCLUSION:

A school district has the responsibility to provide children with disabilities with a free appropriate public education (FAPE). The district meets this responsibility, in part, by ensuring that its staff follow the requirements of special education law. Effective June 4, 1997, federal special education law provides that LEAs must allow parents to participate in meetings regarding a child's identification, evaluation, and educational placement. The department advised districts of this change in special education law in Bulletin 97.06 dated September 1997.

Wisconsin special education law requires that a district must appoint an IEP team for each child referred for special education services. Beginning May 6, 1998, an IEP team must include the child's parents and a LEA representative. By letter dated May 13, 1998, the department advised district administrators and special education directors in Wisconsin of recent revisions to state special education laws. A copy of the revised statute and a press release that highlighted major changes in the law were attached to the department's May 13 letter. The press release stated that "[t]he parents' role is strengthened by making them equal participants with school personnel on the IEP team." One of the IEP team's responsibilities is to evaluate the child to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.

State special education laws, effective May 6, 1998, do not provide for administrative approval of evaluation reports. A district may assign oversight responsibility to the director of special education to ensure the law is followed. The director cannot, however, unilaterally revise or override the IEP team's findings and determinations. If an IEP team is unable to reach consensus regarding a child's eligibility for special education, the district may need to take steps such as: adding more individuals to the IEP team; gathering more assessment data or information in order to make a determination; appointing a different IEP team; and/or implementing a staff development strategy which focuses on building consensus.

Prior to April 19, 1999, the district's special education evaluation procedures did not conform with current state law. The special education evaluation reports for all 12 children were submitted to special education supervisors for approval. The supervisors approved 11 of the children's evaluation reports. One child's M-team was unable to reach agreement regarding the child's eligibility at the M-team meeting. The majority of the M-team members indicated on the report that the child was eligible for ED services only. After the meeting, CD eligibility was added to the child's M-team evaluation report, and the special education supervisor then approved the report. The supervisor indicated on the evaluation report that it had been agreed to by less than a majority of the M-team members. There is a violation with regard to issue #1.

State special education laws, effective May 6, 1998, require school districts to include a child's parents as participants on the IEP team. One of the duties of the IEP team is to evaluate the child to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child. As IEP team participants, parents assist in identifying what additional data or tests, if any, are needed to determine if a child has or continues to have a disability and to identify the child's educational needs. Parents are expected to be equal participants in any IEP team meeting with respect to the evaluation of a child with disabilities.

Issue #2 concerns additional testing conducted during the evaluations of two students. The district added OHI testing to one child's evaluation and CD testing to the other child's evaluation. Prior to April 1999, the district did not include a child's parents as equal participants on the IEP team responsible for evaluating the child. The parents of the two children who received additional testing did not participate in determining that additional testing was required. There is a violation with regard to issue #2.

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ISSUE #3:

Did the district fail to timely evaluate children for special education during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

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

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(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 or initiates a reevaluation of the child under s. 115.782 (4).
(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.
(d) Subject to pars. (a) to (c), if the parents of the child or the local educational agency staff determines at any point during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency shall provide it.

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FINDINGS OF FACT:

Issue #3 relates to the special education evaluations of 10 children who attend West Ridge Elementary, Wind Point Elementary, Janes Elementary, and Starbuck Middle School in the district. The dates on which the district received a referral for evaluation or initiated a reevaluation for each child and notified the parents of the child's educational placement are as follows:

Child #1:7/13/98 referralChild #6:4/7/98 referral
 2/15/99 notice of placement 11/6/98 notice of placement
Child #2:3/20/98 referralChild #7:8/27/98 referral
 5/19/98 extension to 10/30/98 3/8/99 notice of placement
 2/16/99 notice of placement  
Child #3:11/24/98 referralChild #8:8/26/98 referral
 No notice of placement yet 1/14/99 notice of placement
Child #4:10/26/98 referralChild #9:9/1/98 referral
 2/22/99 notice of placement No notice of placement yet
Child #5:10/7/98 referralChild #10:10/16/98 referral
 2/22/99 notice of placement 3/11/99 notice of placement

For each child, the district failed to offer placement within 90 days of the referral for evaluation or initiation of reevaluation. The district obtained an extension of the timeline from one child's parents, but did not notify the parents of the child's placement prior to the expiration of the extension.

CONCLUSION:

A school district must notify parents of the educational placement of their child within 90 days after it receives a special education referral to evaluate the child or initiates a reevaluation of the child. Before the 90-day time limit expires, the district may request an extension from the child's parents or, if the parent refuses to grant an extension, from the department.

For each of the 10 students, the district failed to offer placement within 90 days of receiving a referral for evaluation or initiating a reevaluation. The district obtained an extension of the time limit from one child's parents, but failed to offer placement prior to the expiration of the extension. There is a violation with regard to issue #3.

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ISSUE #4:

Did the district fail to have a local educational agency (LEA) representative participate in IEP meetings during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.78, Wisconsin Statutes
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. Each team shall consist of all of the following:

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(d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum and is knowledgeable about and authorized to commit the available resources of the local educational agency.

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(2) Duties of Team. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under s. 115.787.

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FINDINGS OF FACT:

It is alleged in issue #4 that an LEA representative did not participate in six students' IEP meetings during the 1998-99 school year. At the time the complaint was filed, IEP meetings had not yet been held to develop IEPs for two of the children, so the allegation is not applicable to those two students.

Child #1 and child #2 attend the Garfield Early Childhood program. An IEP meeting was held for child #1 on February 8, 1999. A district representative authorized to commit district resources did not attend the meeting. The IEP developed on February 8 was signed by a substitute principal who regularly fills in for the school principal, but the substitute did not actually attend and participate in the meeting.

A meeting to develop an IEP for child #2 was held on October 14, 1998. The school principal signed the IEP developed on that date as the LEA representative, but the principal did not attend and participate in the IEP meeting.

Child #3 and child #4 attend Wind Point Elementary School. An IEP meeting was held for child #3 on January 6, 1999. A school principal signed the IEP that was developed for child #3 on that date, but the principal did not attend and participate in the meeting. There was no LEA representative present at the IEP meeting.

An IEP meeting was held for child #4 on October 2, 1998. A school principal participated as the LEA representative in the IEP meeting.

CONCLUSION:

A school district must appoint an IEP team for each child referred for special education services. Each IEP team must include, among others, a representative of the district who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general curriculum, and is knowledgeable about and authorized to commit the available resources of the local educational agency. One of the duties of an IEP team is to develop an IEP for a child with a disability.

During the 1998-99 school year, the district held meetings to develop IEPs for four of the six children identified in this issue. A school principal participated as the LEA representative in the IEP meeting held to develop an IEP for child #4. An LEA representative did not attend the IEP meetings for child #1, #2 and #3. There is a violation with regard to this issue.

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DIRECTIVE:

The Racine Unified School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. District administrative staff do not improperly overrule IEP team determinations related to special education eligibility. (issue #1)
  2. With regard to the child for whom CD eligibility was added by a special education supervisor, an IEP team must determine whether the child has a cognitive disability. (issue #1)
  3. The district appoints parents as IEP team participants and includes parents in IEP team determinations related to the evaluation and determination of eligibility of children with disabilities. (issue #2)
  4. The district complies with the timeline set forth in s. 115.78 (3), Wis. Stats. (issue #3)
  5. LEA representatives participate in IEP meetings. (issue #4)

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.

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
4/29/99
_______________________________________________
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