IDEA Complaint Decision 99-023

On March 26, 1999 (letter dated March 25, 1999), a complaint was filed with the Department of Public Instruction by xxxxx against the Kenosha Unified School District. On April 14, 1999, the complainant expanded the number of issues in this complaint. This complaint alleges violations 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 correspondence and materials from the complainant, the district's legal counsel, the district's director of pupil services, the district's executive director of K-8 instruction, the district's coordinator of K-8 instruction, a program support teacher for emotionally disturbed children, the child's special education teacher, the child's special education aide, the child's transition/work experience counselor, and the child's social worker. Department staff also had discussions with the complainant, the district's director of pupil services, the district's coordinator of K-8 instruction, a district social worker, the employee assistance program (EAP) case manager for parent's employer, and the employee benefits specialist at parent's employer.

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ISSUE #1:

Did the district fail to provide complainant's son with transition services in accordance with the student's IEP during the 1998-99 school year?

ISSUE #2:

Did the district fail to provide complainant's son with a free appropriate public education (FAPE) by not providing counseling services in accordance with the student's IEP and at no cost to the parent during the 1998-99 school year?

ISSUE #3:

Did the district fail to provide the complainant's son with supplementary aids and services and supports as described in the student's IEP during the 1998-99 school year? Specifically, the complainant's son's IEP states that he will participate in general education classes and activities with the following modifications: ongoing special education support in terms of planning and consult time between general educators and special educators, and direct support to provide assistance to reinforce directions, provide outlines for organization of work; assist in starting and completing quality work; assist in evaluating work and making corrections; assist in using assistive technology to complete notes, assignments, and projects; assist in accepting and following directions; assist in accepting criticism; assist in realistic evaluation of work; assist in writing journals and portfolios; and assist in task analyzing job skills needed for apprenticeship/job training transition program.

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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(14) "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services, including rehabilitative counseling; orientation and mobility services; medical services for diagnostic and evaluative purposes only; and the early identification and assessment of disabling conditions in children.

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(16) "Supplementary aids and services" means aids, services and other supports that are provided in regular education classes or other education-related settings to enable a child with a disability to be educated with nondisabled children to the maximum extent appropriate.

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20 U.S.C. 1401 (30) Transition services.

The term "transition services" means a coordinated set of activities for a student with a disability that--
(A) is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(B) is based on the individual student's needs, taking into account the student's preferences and interests; and
(C) includes instruction; related services; community experiences; the development of employment and other post-school adult living objectives; and when appropriate, acquisition of daily living skills and functional vocational evaluation.

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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.

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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.
(g) * * * 2. Beginning when the child attains the age of 16, or earlier if that is determined to be appropriate by the individualized education program team, and annually thereafter until the child is no longer eligible for special education and related services, a statement of the needed transition services of the child, including, when appropriate, a statement of the interagency responsibilities or any cooperative arrangements between and among persons.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix C, Question 44

44. Must the IEP include all special education and related services needed by the child or only those available from the public agency?

Each public agency must provide FAPE to all children with disabilities under its jurisdiction. Therefore, the IEP for a child with a disability must include all of the specific special education and related services needed by the child as determined by the child's current evaluation. This means that the services must be listed in the IEP even if they are not directly available from the local agency, and must be provided by the agency through contract or other arrangements.

34 CFR 300, Appendix C, Questions 48 and 51

48. If modifications are necessary for a child with a disability to participate in a regular education program, must they be included in the IEP?

If modifications (supplementary aids and services) to the regular education program are necessary to ensure the child's participation in that program, those modifications must be described in the child's IEP (e.g., for a child with a hearing impairment, special seating arrangements or the provision of assignments in writing). This applies to any regular education program in which the student may participate, including physical education, art, music, and vocational education.

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51. Must the IEP specify the amount of services or may it simply list the services to be provided?

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 the 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.

Letter to Dr. Ora Spann, South Carolina State Department of Education, from Office of Special Education Programs, September 10, 1993, 20 IDELR 627.

Specifically, you asked two questions; first, is it appropriate for a school district to bill for third party insurance? Under Part B of the Individuals with Disabilities Education Act (Part B), each state and its local school districts are required to make a free appropriate public education (FAPE) available to children with specified disabilities within the State in mandated age ranges. 34 CFR ss. 300.121 and 300.8. FAPE includes, among other elements, special education and related services, provided at no cost to parents, in conformity with an individualized education program (IEP). * * *

In December of 1980, the Secretary of Education issued a Notice of Interpretation on Use of Parent's Insurance Proceeds which concluded that:

The requirements that a free appropriate public education be provided "without charge" or "without cost" . . . mean that an agency may not compel parents to file an insurance claim when filing the claim would pose a realistic threat that the parents of [children with disabilities] would suffer a financial loss not incurred by similarly situated parents of [nondisabled] children. Financial losses include, but are not limited to, the following:

(1) A decrease in available lifetime coverage or any other benefit under an insurance policy;
(2) An increase in premiums under an insurance policy; or
(3) An out-of-pocket expense such as the payment of a deductible amount incurred in filing a claim. * * *

Therefore, public agencies may access parent's insurance to pay for required special education and related services in circumstances where the parents would incur no realistic threat of a financial loss. However, in circumstances where parents would incur a realistic threat of a financial loss, use of parent's insurance proceeds must be voluntary.

In your second question, you asked if the school district must "seek" the permission of the parents and inform them of all their rights in the process (including the fact that there may be a potential loss of lifetime benefits). Public agencies must obtain parental consent for the filing of an insurance claim, including informing parents of any potential financial losses they could incur. However, public agencies may not condition the provision of special education and related services on parental consent to the filing of an insurance claim. Therefore, parents may refuse to sign a consent form without jeopardizing receipt of services to their child.

FINDINGS OF FACT:

During the 1998-99 school year, the student whose education is the subject of this complaint was a 12th-grade student with autism attending Tremper High School and Indian Trails Academy in the Kenosha Unified School District. The student graduated from high school in June 1999. On March 18, 1998, the district conducted an IEP team meeting to develop the complainant's son's IEP, including the consideration of transition services, for the period beginning March 18, 1998, and ending on March 18, 1999. The parents and their son participated in the IEP meeting. The IEP requires the following special education services:

(Child) will receive support in all regular education classes such as access to general education teachers notes to highlight use of assistive technology assistance to outline, organize and complete assignments, assistance to write assignments in assignment notebook¿...(Child) will have support to work on his speech/language goals ongoing in general education classes. (Child) will receive special education support in terms of having a resource room to go to for test assistance, instruction, and alternate environment for decreased stimuli. (Child) will continue his job training experience class 4th hour with special education and transition support.

The IEP further requires that the student receive speech and language services on a consultation basis, in addition to social work services, school health services and an assistive technology assessment. The student's IEP includes a page entitled, "Summary of Transition Services." This page indicates that transition services are included in the student's IEP in the areas of instruction, related services, community experiences, employment objectives, post school adult living objectives, acquisition of daily living skills and functional vocational evaluation. The transition page cross-references the above-mentioned transition areas with the relevant goals and short-term objectives. The student's IEP does not, however, specify the amount of time, including frequency/time, location, and duration to be committed to the special education and related services, including transition services to be provided to the child.

The student's IEP also requires the following supplementary aids and services be provided to the complainant's son in the regular education program:

(Child) will participate in general education classes and activities with the following modifications: ongoing special education support in terms of planning and consult time between general educators and special educators, and direct support to provide assistance to reinforce direction, provide outlines for organization of work; assist in starting and completing quality work; assist in evaluating work and making corrections; assist in using assistive technology to complete notes, assignments, projects; assist in accepting and following directions; assist in accepting criticism, assist in realistic evaluation of work, assist to write journals and portfolios and assistance to task analyze job skills needed for apprenticeship/job training transition program. Support can combine consultation and direct support.

The IEP includes supplementary aids and services to be provided to the student, but does not indicate the amount of time, including the frequency/time, location and duration committed to these services.

On October 16, 1998, the complainant's son was suspended for three days for alleged inappropriate interactions with members of the opposite sex. As a result of this alleged incident and others, a district IEP team conducted a manifestation determination review on October 20, 1998, for the complainant's son concerning his alleged inappropriate behavior with females. At that meeting the participants determined that the complainant's son's behavior was a manifestation of his disability. The IEP team participants decided that the complainant's son would receive counseling to address his inappropriate behavior. New IEP goals and short-term objectives were added to address the student's work experience needs and inappropriate behavior. The youth's new IEP goals dealing with his work experience needs read: "Child will actively pursue a full time position in the printing industry. He will continue completing requirements outlined in the appentiship (sic) program." The student's new IEP goal dealing with his inappropriate behavior reads: "(Child) will develop appropriate relationship with members of the opposite sex." An accompanying short-term objective to this behavioral goal states: "(Child) will see a professional counselor to address these issues." The IEP requires that transition and counseling services be provided to the student, but his IEP does not specify the amount of time committed to these services or the date of initiation of the services.

At the October 20, 1998, IEP meeting, the parents sought recommendations from district staff as to who should provide the counseling services, as they were eager to begin counseling services for their son. The district indicated they did not have anyone on staff who could provide the professional counseling services. The parents arranged for private counseling services for their son through the father's employee assistance program (EAP). The EAP paid for private counseling services for the complainant's son on four different occasions: October 27, November 12, December 2, 1998, and January 15, 1999. The services were not provided under the direction and supervision of the district. The EAP benefits were employer-paid and were not subject to any co-payment or a depletion of available lifetime, annual or service coverage for the four counseling sessions.

On November 13, 1998, the complainant telephoned the district's coordinator of K-8 instruction to request that the Kensoha Unified School District provide counseling services as specified on her son's October 20, 1998, IEP. The coordinator indicated to the complainant that the district counseling staff would provide the IEP services to her son. The district's services did not begin until January 28, 1999.

On December 22, 1998, district staff and the student's parents held a special education mediation session relating to the provision of transition and counseling services for their son. The mediation session produced a written agreement between the parties. The agreement describes the transition and counseling services to be provided to complainant's son. The agreement requires that the complainant's son receive resource and transition support services from a resource teacher and a work experience transition teacher. The agreement does not specify the amount of special education services the child will receive. The agreement further indicates that the complainant's son will receive instruction on specific equipment for one hour per week each from two teachers. The agreement also indicates that the complainant's son will receive the services of an educational assistant for one hour per week for the purpose of meeting the requirements of the Wisconsin Youth Apprenticeship Program. The agreement does not specify the beginning and ending dates that the services will be provided. The agreement indicates that the Kenosha Unified School District will provide counseling services twice per month at locations to be determined. The district provided counseling services twice per month beginning on January 28, 1999. The agreement does not, however, specify the amount of time committed to the counseling services.

CONCLUSION:

A district meets its obligation to provide a free appropriate public education (FAPE) to a child with a disability in part by providing special education and related services which meet the rules enforced by the department and in conformity with a proper IEP. Among the rules enforced by the department are the rules concerning the content of a child's IEP. The IEP for each child must include a statement of specific special education and related services to be provided the child. For students who have attained the age of 16, the statement of special education and related services must include needed transition services, including, when appropriate, a statement of the interagency responsibilities or any cooperative arrangements between and among persons. A statement of needed transition services in the IEP must also include, if appropriate, instruction; related services; community experiences; employment objectives; functional vocational evaluation; and acquisition of daily living skills. The statement of special education and related services including transition services must specify the amount of each service. The amount of time to be committed to each of the services must be stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. Services must be provided consistent with the child's IEP. If modifications (supplementary aids and services) to the regular education program are necessary to ensure child's participation in that program, those modifications must be described in the child's IEP. This requirement applies to any regular education program in which the student may participate.

A district also meets its obligation to provide a FAPE, in part, by ensuring that IEP services are at no cost to the parents and are under public supervision and direction. The requirement that a FAPE be provided without charge means that a school district may not compel parents of a child with a disability to file an insurance claim when filing the claim would pose a realistic threat that the parents would suffer a financial loss not incurred by similarly situated parents of nondisabled children. When filing an insurance claim would pose a realistic threat of financial loss, a school district must obtain parental consent for the filing of the insurance claim, including informing parents of any potential losses they could incur.

Issue #1 deals with the allegation that the district failed to provide the complainant's son with transition services in accordance with the student's IEP during the 1998-99 school year. The student's March 18, 1998, IEP indicates that transition services are included in the areas of instruction, related services, community experiences, employment objectives, post school adult living objectives, acquisition of daily living skills, and functional vocational evaluation. The student's October 20, 1998, IEP includes a new goal and short-term objectives dealing with transition services for the child. The December 22, 1998, mediation agreement requires that the complainant's son receive transition support services from a resource teacher and a work experience transition teacher. However, the student's March 18, and October 20, 1998, IEPs do not specify the amount of time, including frequency/time, location, and duration, for the provision of the transition services. The December 22, 1998, mediation agreement does not specify the amount of time for these services and the IEP was not revised to specifically incorporate these services. Therefore, the district failed to provide transition services consistent with a proper IEP. There is a violation in regard to issue #1.

Issue #2 deals with the allegation that the district failed to provide the complainant's son with a free appropriate public education by not providing counseling services in accordance with the student's IEP and at no cost to the parents during the 1998-99 school year. The student's October 20, 1998, IEP requires that counseling services be provided. The student's IEP does not specify the amount of time, including frequency/time, location and duration to be committed to the counseling services. The district did not provide counseling services from October 20, 1998, through January 28, 1999. The December 22, 1998, mediation agreement requires the school district to provide counseling services twice a month to the complainant's son. The district provided counseling services twice a month beginning January 28, 1999. The mediation agreement does not, however, specify the amount of time committed twice a month for those services, and the IEP was not revised to incorporate these services with sufficient specificity. Therefore, the district failed to develop a proper IEP relating to the provision of counseling services. There is a violation with the first part of issue #2.

The second part of issue #2 deals with the allegation that the district failed to provide complainant's son with a FAPE by not providing counseling services at no cost to the parents. The student's October 20, 1998, IEP requires that counseling services be provided to the complainant's son. Therefore, the district is ultimately responsible for ensuring that the counseling services are provided at no cost to the child's parents. The complainant's son received four private counseling sessions that were provided through the parent's employer-paid EAP. These IEP services provided to the complainant's son through the father's EAP were without charge to the parents. The district counseling services, which commenced on January 28, 1999, were also provided at no cost to the parents. Therefore, the department concludes that there is no violation in the second part of issue #2.

Issue #3 deals with the allegation that the district failed to provide the complainant's son with supplementary aids and services and supports as described in the student's IEP during the 1998-99 school year. The student's March 18, 1998, IEP, for the period beginning March 18, 1998, and ending on March 18, 1999, requires supplementary aids and services and supports be provided to complainant's son. The student's IEP describes the supplementary aids and services to the regular education program that are necessary to ensure the student's participation in that program. In the description of these supports, the district failed to include the amount of time, including frequency/time, location and duration, committed to these services. Therefore, the district failed to provide supplemenary aids and services consistent with a proper IEP. There is a violation in regard to issue #3 of the complaint.

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DIRECTIVE:

The Kenosha Unified School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the IEPs of other children provide special education and related services including transition services and supplementary aids and services consistent with a proper IEP, that includes the frequency/time, location and duration of the services.

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
11/22/99
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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