IDEA Complaint Decision 99-017

On March 4, 1999 (parent's letter not dated) a complaint was filed with the Department of Public Instruction by XXXXX against the Racine Unified School District (RUSD). 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 relevant pupil records and written statements from the complainant and a school district supervisor of special education. In addition, department staff interviewed the complainant, the school principal, two regular education teachers, two special education teachers, an education assistant, a district special education secretary and a district supervisor of special education.

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ISSUE #1:

Did the district fail to provide the complainant's daughter one-to-one assistance consistent with the child's individualized education program (IEP) during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

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:

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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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(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 * * *.

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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Question 45

45. Is the IEP a commitment to provide services--i.e., must a public agency provide all of the services listed in the IEP?

Yes. The IEP of each child with a disability must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act.

FINDINGS OF FACT:

The complainant's eight-year-old daughter is a child with a disability who receives special education and related services. An initial evaluation completed on January 10, 1995, identified the child as eligible for special education in the areas of speech and language, orthopedic impairment and other health impaired.

On March 31, 1998, the district held a meeting to develop the child's individualized education program (IEP) for the period beginning March 31, 1998, and ending March 31, 1999. The child's father attended the meeting. The IEP includes the following statement under the heading "Justification for removal from regular education environment." "(Student's name) needs the specific and recommended Ex. Ed. Services on Part A, page 1 as well as one-to-one assistance to reach her highest potential." The following objectives regarding one-to-one assistance are included in the IEP:

(Student's name) will have adult assistance with positioning, transitioning and safety during classroom activities.

(Student's name) will meet and follow the 1st grade regular education curriculum criteria with assistance as needed.

(Student's name) will work independently when possible with assigned materials, but will need 1-1 assistance and set-up of materials.

The district's nursing services individualized health plan included in the child's IEP states: "(Student's name) will receive close constant supervision from adults." The outcome of the intervention is stated, "(Student's name) will be maintained in a safe environment."

On January 21, 1999, an IEP meeting was held to revise the child's IEP. On March 9, 1999, the IEP team reconvened. The child's mother and father attended the meetings. The IEP includes under the "Justification for removal from the regular education environment:" "(Student's name) requires one-to-one assistant for writing and safety purposes to reach her highest level of independence with the possible exception of therapies, music, and library." The following objectives regarding one-to-one assistance are included in the IEP:

(Student's name) will complete regular education curriculum at the appropriate grade level at a satisfactory level with modifications as needed¿ -working independently in group activities without education assistant sitting by her. Beginning January 21, 1999.

(Student's name) will continue to have adult assistance for safety reasons. -transitioning - positioning. Evaluation Objective Criteria 100% of the time. Beginning March 9, 1999.

The district's nursing services individualized health plan included in the child's IEP states: "Staff will provide close constant supervision from adults." The outcome of the intervention is stated, "(Student's name) will be maintained in a safe environment."

An education assistant assigned to the complainant's daughter provides the one-to-one assistance required in the child's IEP. When the assistant is not available, the services are provided by a special education teacher or other licensed district staff who serve the child. The child's IEP does not require one-to-one assistance be provided to the child by an assistant assigned exclusively to serve the child. District staff provided one-to-one assistance to the child consistent with her IEP during the period addressed by the complaint.

In his letter of complaint to the department, the child's parent refers to a November 24, 1998, incident. The parent alleges that on November 24, 1998, the child was unsupervised standing strapped in her walker in the doorway of her regular education classroom for approximately ten minutes. Although the child's education assistant was not present, the teacher was present.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a proper IEP. The IEP must specify special education and related services to meet the child's needs.

The child's IEP includes statements referring to one-to-one assistance. The special education services regarding one-to-one assistance stated in the child's IEP were provided to the child during the period addressed by this complaint. There is no violation with respect to issue #1.

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ISSUE #2:

Did the district fail to include the participation of a representative of the local education agency at IEP meetings conducted on March 31, 1998; January 12, 1999; and January 21, 1999?

ISSUE #3:

Did the district fail to provide the complainant a copy of his daughter's IEP in a timely manner during the 1997-98 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:
(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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34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Education records" (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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34 CFR 300.560 Definitions.

As used in ss. 300.560-300.576--

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Education records means the type of records covered under the definition of education records in Part 99 of this title (the regulations implementing the Family Educational Rights and Privacy Act of 1974).

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34 CFR 300.562 Access rights.

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, and in no case more than 45 days after the request has been made.

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Section 118.125, Wisconsin Statutes
Pupil records.

(1) DEFINITIONS. In this section:
(a) "Behavioral records" means those pupil records which include psychological tests, personality evaluations, record of conversations, any written statement relating specifically to an individual pupil's behavior, tests relating specifically to achievement or measurement of ability, the pupil's physical health records other than his or her immunization records or any lead screening records required under s. 254.162, peace officers' records obtained under s. 48.396 (1m) and any other pupil records that are not progress records.

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(2) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential, except as provided in pars. (a) to (m) and sub. (2m). The school board shall adopt regulations to maintain the confidentiality of such records.

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(b) An adult pupil or the parent or guardian of a minor pupil shall, upon request, be shown, in the presence of a person qualified to explain and interpret the records, the pupil's behavioral records. Such pupil or parent or guardian shall, upon request, be provided with a copy of the behavioral records.

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FINDINGS OF FACT:

On March 31, 1998, at an IEP team meeting, an IEP was developed for the child who is the subject of this complaint for the period beginning March 31, 1998, and ending March 31, 1999. The child's father attended the meeting. A representative of the local educational agency (LEA) authorized to commit district resources did not attend the meeting. The March 31, 1998, IEP was signed by the school principal after the meeting as the representative of the LEA; however, the principal did not participate in the meeting.

The child's mother orally requested a copy of the child's March 31, 1998, IEP in April, June, July, and on August 28, 1998. On June 29, 1998, the LEA sent the child's parents a notice of placement based on the IEP developed on March 31, 1998. The LEA did not send the parents a copy of the child's IEP with the placement notice. On August 28, 1998, the child's father went to the LEA special education central office. He requested and received a copy of his daughter's March 31, 1998, IEP. There was no due process hearing or IEP meeting concerning the child's education within the 45 days before the complainant's request for a copy of his daughter's IEP.

On January 12, 1999, a meeting was held with the child's parents, the child's first grade teachers, the orthopedic impairments (OI) itinerant teacher, and the educational assistant. The OI teacher arranged this meeting at the parents' request. The meeting participants were notified of the meeting verbally and in writing. The meeting was not an IEP team meeting.

On January 21, 1999, at 2:30 p.m., an IEP team meeting was held for the complainant's daughter. The child's parents attended the meeting. A LEA supervisor of special education attended and participated in the meeting as the representative of the LEA. The LEA representative announced at the beginning of the meeting that at 3:30 p.m. she would need to leave the meeting for another appointment. When the LEA representative left the meeting, the meeting was discontinued and participants were informed that the meeting would be continued at a date and time to be determined. The child's March 31, 1998, IEP remained in effect. On March 9, 1999, the IEP team reconvened.

On March 4, 1999, this complaint was filed with the department. On March 18, 1999, the complaint was acknowledged by the department identifying the 1998-99 school year as the time period during which the district allegedly failed to provide the complainant a copy of his daughter's IEP in a timely manner. During the course of the investigation of this complaint, the department informed the parent and the district that issue # 3 relates to the 1997-98 school year.

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CONCLUSION:

A LEA must appoint an IEP team for each child referred for special education services. The duties of an IEP team are 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, develop an IEP for the child and determine the special education placement for the child. Each IEP team must include, among others, a representative of the LEA.

On March 31, 1998, the LEA held a meeting to develop an IEP for the complainant's daughter. A LEA representative did not attend and participate in the IEP meeting. On January 12, 1999, the district conducted a meeting at the parent's request. This meeting was not an IEP team meeting. On January 21, 1999, and March 9, 1999, the LEA held IEP meetings to develop an IEP for the complaint's daughter. A LEA representative did attend and participate in these two IEP meetings. There is a violation with respect to the March 31, 1998, IEP meeting for issue #2.

A district must comply with a parent's request to access education records without unnecessary delay and before any meeting regarding an IEP or any hearing relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education (FAPE) to the child, and in no case more than 45 days after the request has been made.

After oral requests made by the child's mother in April, June, July and August 1998, the child's father was provided a copy of his daughter's March 31, 1998, IEP on August 28, 1998. The district did not provide the complainant a copy of his daughter's IEP in a timely manner during the 1997-98 school year. There is a violation with respect to issue #3 of this complaint.

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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. LEA representatives attend and participate in all IEP team meetings (Issue #2); and
  2. When the parents of a child with a disability request the child's education records, including an IEP, the district timely provides the parents a copy (Issue #3).

Because the district has conducted subsequent IEP team meetings with LEA representatives in attendance and provided the parent a copy of the child's IEP, the department is not requiring child-specific corrective actions. 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.

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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
6/2/99
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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