IDEA Complaint Decision 99-039

On May 24, 1999 (letter dated May 10, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Unity 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. In conducting this investigation the department reviewed written materials submitted with the complaint, the district's response to the complaint and portions of the child's records relating to the complaint.

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ISSUE #1:

Did the district improperly exclude the complainant's child from school?

ISSUE #2:

Did the district fail to ensure that an individualized education program (IEP) team considered positive behavioral interventions, strategies, and supports to address the child's behavior that impedes his learning or the learning of others?

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 is 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.

(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.
(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 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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(3) DEVELOPMENT.

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(b) The individualized education program team shall do all of the following:
1. In the case of a child whose behavior impedes his or her learning or that of others consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior.

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34 CFR 300.343 Meetings.

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(d) Review. Each public agency shall initiate and conduct meetings to review each child's IEP periodically and, if appropriate, revise its provisions. A meeting must be held for this purpose at least once a year.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix C, Questions 10 and 46

10. How frequently must IEP meetings be held and how long should they be?

Section 614(a)(5) of the Act provides that each public agency must hold meetings periodically, but not less than annually, to review each child's IEP and, if appropriate, revise its provisions. The legislative history of the Act makes it clear that there should be as many meetings a year as any one child may need. (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford))

46. 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.

34 CFR Part 300, Appendix A, Question 20 (Issued March 12, 1999)

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In general, if either a parent or a public agency believes that a required component of the student's IEP should be changed, the public agency must conduct an IEP meeting if it believes that a change in the IEP may be necessary to ensure the provision of FAPE.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a seven-year-old resident of the district who is a child with a speech and language disability. This complaint relates to behaviors displayed by the child abruptly late in the last school year and resulting school absences. Beginning March 29, 1999, through May 24, 1999, when the complaint was received by the department, the child did not attend school for a period totaling 36 school days. During this time period he did attend school six half days. Beginning on or about April 1, 1999, the child was evaluated on an inpatient basis at a regional hospital and was discharged on or about April 8, 1999. During this time he was unable to receive education services. Hospital staff recommended that the child attend school for half days following his discharge. The child's first day in school following the hospitalization was April 14 when he attended school for a half day in the morning. During the next 25 consecutive school days, the child attended school for one morning only. Between May 20 and 28 the child attended school for four half days and two full days. The district did not provide the child with educational services during the time periods when he did not attend school. The child has attended full days of instruction starting with commencement of the 1999-2000 school year.

The district's response to the complaint maintains that during a portion of the period when the child did not attend school, it was the parent's decision to keep the child at home due to concerns related to his behavior. The district also maintains that it did attempt to meet with the parent on several occasions to discuss the child's schooling, but that the parent failed to attend several of the meetings. District staff also understood that the parent was going to request that a doctor provide a statement that the child needed homebound instruction. The parent maintains that she tried several times to obtain the statement, but she did not provide the district with a doctor's recommendation for homebound instruction. District staff also understood that during April or May the parent planned to have the child assessed at another clinic on a resident basis for 30 days. The child was not assessed at the clinic.

On April 14, 1999, when the child first returned to school following his hospitalization, he verbally threatened physical harm to one of his classmates. The other child subsequently was moved to a different teacher's class so that she would be less fearful following the threat. A teaching assistant had witnessed the threatening behavior and was concerned about the words the child used and his tone of voice. On April 19, 1999, the child's regular education classroom teacher met with the child's mother to propose several options regarding the child's schooling. Three of the options discussed were: continuing half-day instruction in school, keeping the child home to permit newly prescribed medications to begin working, and beginning homebound instruction for the child. The fourth option discussed was making a special education referral to consider the child's eligibility for an additional disability. During the meeting the teacher indicated to the parent that the child was not maintaining appropriate behavior during even half days in school. The teacher also indicated that the child could not be placed immediately into an emotional disabilities program because at that point he only had been determined eligible for speech and language services.

The IEP for this child was developed at a meeting conducted on March 10, 1999. This IEP addresses the child's needs related to his speech and language disability, indicates that the child's behavior does not interfere with his learning or the learning of other students and contains no goals or services relating to behavior. No other IEP team meetings were held between March 10 and the end of the school year. The child's IEP was reviewed and revised at an IEP team meeting on September 1, 1999. The complainant attended this meeting. This IEP indicates that the child's behavior does impede his learning or that of other students and it provides that following completion of the reevaluation, a behavior intervention plan will be developed.

On April 30, 1999, a school psychologist sent a letter to the child's mother indicating that a reevaluation of the child was being initiated in response to a referral from the child's non-district counselor. This counselor recently had contacted the director of special education for the district due to her concern that the district was not providing appropriate services to the child. The letter indicates that the reevaluation would review the "behavioral, emotional, and social problems that [child] is presently experiencing." The letter was accompanied by a referral form, a notice of a reevaluation, a consideration of existing data worksheet, and a notice and consent for additional testing form, all dated April 30. The district's response to the complaint indicates that an additional notice seeking parental consent for testing was mailed on May 24, but that the parent did not respond to these requests for consent to testing following the April 30 referral and as a consequence the reevaluation had not been conducted. The form utilized by the district when seeking consent for administration of additional tests or other evaluation materials during a reevaluation notifies the parent that the district is permitted to proceed with administering tests or other evaluation materials if the parent fails to respond to the request. An IEP team meeting was conducted on September 21, 1999, to complete a reevaluation of the child.

CONCLUSION:

A school district has a responsibility to provide a FAPE to each child with a disability. The district must develop an IEP which specifies the special education and related services to be provided to meet a child's needs. A district must provide special education and related services consistent with the child's IEP, and it must implement the provisions in the IEP. A district must periodically review and, as necessary, revise a child's IEP when circumstances warrant. The IEP team which develops the child's program must, in the case of a child whose behavior impedes his or her learning or the learning of other students, when appropriate, consider strategies to address the behavior, including positive behavioral interventions and supports.

During the time period covered by this complaint, the IEP for the child whose education is the subject of this complaint requires the district to provide him with speech and language services. Between March 29 and May 24, 1999, the district did not provide the child the services required in his IEP. During a portion of this time, the child was hospitalized and unable to receive education services. When the child was able to attend school following his discharge, the district was required to, but did not, provide the services set forth in the child's IEP. The child did attend school for one half day on April 14, but he then attended school for only 2 half days during the next 24 days of school. The district did not provide speech and language services to him during this time.

In its response to the complaint, the district maintained that the parent decided to keep the child at home during the time when he did not attend school and that she had indicated that she would provide the district with a doctor's statement for homebound services. State and federal special education laws guarantee each child with a disability the right to a free appropriate public education, which includes special education and related services required by a child's individualized education program (IEP). The law grants parents certain rights or procedures that check the power of the public agency and presumes parents will use these rights to represent the child and protect the child's rights with respect to the public agency. The law also authorizes a public agency, as well as the child's parents, to initiate a due process hearing. While a public agency must respect the rights of parents, ultimately it is the public agency that has an overriding duty to ensure that a child receives required special education and related services. A public agency cannot defer to parents to such an extent that the public agency denies the child required IEP services.

During the time period covered by this complaint the district received information requiring it to convene an IEP team meeting to review and, as appropriate, revise the child's IEP. The child was evaluated as an inpatient and hospital staff recommended half-day programming following his discharge. On the child's first day back in school he threatened one of his classmates making the child sufficiently fearful that district staff decided to move her to a different classroom. One staff member overheard the threat and was concerned by it. The child's regular education classroom teacher, based on the child's actions on the first day back in school, concluded that he was having difficulty maintaining his behavior. This information, by itself, may have been sufficient to warrant convening a meeting of the IEP team. However, this, when coupled with later events including the child's continued non-attendance for several weeks and the communication from his private counselor leading to a referral for a reevaluation to consider an additional disability category, required that the district convene a meeting of the IEP team. The child had been found eligible for special education as a child with a speech and language disability only and the IEP team previously had determined that the child's behavior did not interfere with his learning or the learning of others. Once the district had reason to believe that the child may require program modifications to address his new behavior issues, it was required to convene an IEP team meeting. Children eligible for special education services, regardless of identified disability, must be provided educational services necessary to afford them an appropriate education. The district was not authorized to await a determination regarding whether the child was emotionally disturbed before providing services to address behavior-related needs.

An IEP team should have considered whether the child's behavior was interfering with his education or that of other children. The district did take this step, but not until September 1, 1999, when the child's IEP was revised during an IEP team meeting. Had the team concluded earlier that his behavior was interfering with his or other student's learning, the team would have been required to modify his program accordingly. Further, the district is permitted to proceed with testing or administering other evaluation materials without parental consent when a parent does not respond to a request for consent to these activities, as was the case here. In this situation the district did not timely convene an IEP team meeting to consider programs changes, nor did it proceed with testing following parental failure to respond to request for consent to testing. This failure to respond appropriately to apparent changes in the child's learning needs resulted in the child not receiving educational services for a total of 36 days during the relevant time period. There is a violation regarding issues #1 and #2 of the complaint.

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DIRECTIVE:

The Unity School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) which ensures that the district:

  1. Provides special education and related services to children with disabilities consistent with each child's IEP.
  2. When appropriate, considers strategies and supports to address the behavior of children which interferes with their learning or the learning of other students.
  3. Convenes an IEP team meeting to determine whether the child whose education is the subject of this complaint needs additional education services to compensate for the period from March 29 to May 28, 1999, when he missed multiple days of school.

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/SJP
10/21/99
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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