IDEA Complaint Decision 99-037

On May 25, 1999 (letter dated March 25, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Weyauwega-Fremont 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 child's relevant education records and the district's response to the complaint. Department staff spoke with the complainant and the director of pupil services.

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

ISSUE #1:

Did the district fail to specify the amount and frequency of special education services in the child's March 19, 1999 IEP?

ISSUE #2:

Did the district fail to provide the child with required special education by limiting services to three hours daily, three days per week since March 22, 1999?

ISSUE #3:

At an IEP team meeting on May 19, 1999, did district administrative staff improperly refuse to provide extended school year (ESY) services to the child without consideration by the IEP team?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
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
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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

* * *

(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

* * *

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

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

* * *

(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 * * *.

* * *

(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.

* * *

34 CFR 300.346 Content of individualized education program.

(a) General. The IEP for each child must include--

* * *

(3) A statement of the specific special education and related services to be provided to the child * * *.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Questions 45 and 51

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.

* * *

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 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.

* * *

FINDINGS OF FACT:

This complaint concerns the education of a 20-year-old student with a severe cognitive disability who attends the Weyauwega-Fremont School District.

On March 19, 1999, an IEP team meeting was held to review and revise, if necessary, the child's IEP. The IEP requires that the student receive the following special education services: speech and language for one-half hour, once per week; sheltered employment services for approximately four hours, four times per week; and daily living skills instruction for half-days (approximately four hours), six times per week. From March 20 to May 19, 1999, the district provided the student with the special education and related services specified in the March 19 IEP.

On May 19, 1999, the IEP team met for an annual review of the child's IEP. The May 19 IEP requires that the student receive 100% special education services for six hours daily, five days per week and speech and language services for 15 minutes, three times per week from May 19 to June 16, 1999. Since May 19, the child did not consistently receive six hours of special education services, five days per week.

At the May 19 IEP team meeting, the complainant requested that the child receive an extended school year as compensation for services that the complainant alleged the child had not received from January 5 to March 19, 1999. The complainant had previously filed a state IDEA complaint regarding the district's failure to provide services during that time period. At the May 19 IEP meeting, the director of pupil services informed the complainant that a determination regarding compensatory services would not be made until the department issued a decision.

By written decision (case no. 99-019) dated May 21, 1999, the department directed the district to hold an IEP team meeting to determine whether additional special education and related services should be provided to the youth to compensate for the failure to provide services consistent with his IEP from January 5 to March 19, 1999. At an IEP team meeting held on June 16, 1999, the child's IEP was revised to require that the child receive compensatory education services from June 21 to August 13, 1999.

CONCLUSION:

A district must provide a free appropriate public education (FAPE) to each child with a disability. A district meets its obligation to provide FAPE, in part, by providing special education and related services that meet the requirements of the statutes and rules enforced by the department. An IEP must specify special education and related services necessary to meet a child's needs, including the amount and frequency of each of the various services. A district must provide special education and related services to a child consistent with the child's IEP.

The amount and frequency of special education services to be provided to the child is specified in the child's March 19, 1999 IEP, as well as the May 19 IEP. There is no violation with regard to issue #1.

From March 20 to May 19, 1999, the district provided the student with the special education and related services specified in the March 19 IEP. The district did not limit the special education services provided to the child to three hours daily, three days per week since March 20, 1999. However, since May 19, the district did not consistently provide the child with six hours of special education services, five days per week, as required by the May 19 IEP. To that extent, there is a violation with regard to issue #2.

At the May 19 IEP team meeting, the district informed the complainant that a determination whether or not to provide compensatory services to the child during the summer would not be made until the department issued a decision in a complaint that concerned that issue. The district did not refuse to provide an extended school year to compensate for missed services. On June 16, 1999, the IEP team revised the child's IEP to include compensatory services during the summer for missed services from January 5 to March 19, 1999. There is no violation with regard to issue #3.

_______________

DIRECTIVE:

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

  1. the district provides special education and related services to the child and all children with disabilities in accordance with the requirements of each child's IEP; and
  2. the district hold an IEP meeting to determine whether the child requires additional special education services to compensate for the period from May 19 to June 16, 1999.

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.

signed JSP
7/21/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

smp

For questions about this information, contact Patricia Williams (608) 267-3720