IDEA Complaint Decision 99-044

On June 23, 1999 (letters dated June 12 and 18, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Waukesha 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 investigating this complaint, department staff reviewed relevant pupil records and written statements from the complainant and the school district. By telephone, department staff contacted the child's parent, and the district's school psychologist.

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

ISSUE #1:

Did the district hold a meeting on February 12, 1997, to review the complainant's child's individualized education program (IEP) without the required participants?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 11.05 (Repealed October 1, 1998)
Individualized education program.

(1) APPOINTMENT OF STAFF. When an M-team report is approved under s. PI 11.04(5)(d) indicating that a child who is 3 years of age or older, a resident of the school district and who has not graduated from high school, is a child with EEN, a board shall appoint staff to develop an IEP for the child. The staff appointed by the board shall include a person who is knowledgeable about the child, the type of evaluation data available on the child and the program options.

* * *

(b) The board shall ensure that each IEP meeting includes the following participants:
1. A representative of the board, other than the child's teacher, who is qualified to provide, or supervise the provision of, special education.
2. The child's teacher.
3. One or both of the child's parents, subject to sub. (3).
4. The child, if appropriate.

* * *

8. Persons other than those specified in subds. 1 to 7 may attend the meeting at the discretion of the parent or the board.

* * *

(5) REVIEW OF THE IEP. (a) At least annually a board shall review the IEP of each child with EEN who is a resident of the district. Whenever a board conducts a review of a child's IEP or wants to change a child's IEP it shall comply with this section.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix C, Question 13

13. Who can serve as the representative of the public agency at an IEP meeting?

The representative of the public agency could be any member of the school staff, other than the child's teacher, who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities¿.Thus, the agency representative could be (1) a qualified special education administrator, supervisor, or teacher (including a speech-language pathologist), or (2) a school principal or other administrator - if the person is qualified to provide, or supervise the provision of, special education.

Each State or local agency may determine which specific staff member will serve as the agency representative. However, the representative should be able to ensure that whatever services are set out in the IEP will actually be provided and that the IEP will not be vetoed at a higher administrative level within the agency. Thus, the person selected should have the authority to commit agency resources (i.e., to make decisions about the specific special education and related services that the agency will provide to a particular child).

* * *


Letter from the Department of Public Instruction to Director of Student Services, Marshfield School District, August 5, 1996

* * *

The law requires that a representative of the board (local education agency or LEA representative), other than the child's teacher, participate in each meeting held to develop a child's IEP. The department discussed procedural requirements relating to the development of IEPs, including the participation of an LEA representative, Exceptional Education/Pupil Services Update Bulletin 91.7, issued in May 1991. The bulletin states:

The representative of the local education agency (LEA) can be anyone of several people. Whoever the individual is, he or she must have the authority to commit agency resources, because the IEP is a commitment of resources by the district.

* * *

FINDINGS OF FACT:

At the beginning of the 1996-97 school year, the child who is the subject of this complaint was 4 years old in an early childhood program receiving speech and language services. On February 12, 1997, an individualized education program (IEP) team meeting was held to review the child's IEP and develop an annual IEP for the child. The child's early childhood teacher, speech and language pathologist, mother, and a parent advocate attended the IEP team meeting. The speech and language pathologist was designated as the local educational agency (LEA) representative. The speech and language pathologist had the authority to commit the agency resources discussed at the IEP team meeting and was qualified to provide special education.

CONCLUSION:

State and federal special education law requires that a representative of the LEA, other than the child's teacher, who is qualified to provide, or supervise the provision of special education; the child's teacher; one or both of the child's parents; the child, if appropriate; and other persons at the discretion of the parent or the LEA participate in IEP team meetings. The LEA representative can be any of several district people who have the authority to commit agency resources.

The IEP team meeting held on February 12, 1997, included the required participants. The child's teacher and a representative of the LEA attended the meeting. The child's parent attended the meeting. The speech and language pathologist designated as the LEA representative is qualified to provide special education and had the authority to commit the agency resources discussed at the IEP team meeting. There is no violation with regard to issue #1.

_______________

ISSUE #2:

Did the district fail to provide the complainant parent with multidisciplinary team (M-team) members' individual reports at a January 29, 1998, M-team meeting?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.782 (Effective May 6, 1998)
Evaluations.

* * *

(e) Each individualized education program team participant who administers tests, assessments or other evaluation materials as part of an evaluation or reevaluation of a child under this section shall prepare and make available to all team participants at a team meeting a written summary of the participant's findings that will assist with program planning.

* * *

Wisconsin Administrative Code, Section PI 11.04 (Repealed October 1, 1998)
Multidisciplinary teams.

* * *

(2) APPOINTMENT AND COMPOSITION. (a) Whenever a board receives an EEN referral for a child who is a resident of the district and who has not graduated from high school, the board shall appoint an M-team to conduct an M-team evaluation of the child to determine whether the child is a child with EEN.

* * *

(3) M-TEAM EVALUATION.

* * *

(g) Each member of the M-team shall prepare a written report of the evaluations he or she conducted and the findings. The members shall submit their reports to the director or program designee with the proposed M-team report or reports under sub. (5)(d) 1, unless the parent asks to have the individual reports available at the M-team meeting. The members shall have their individual reports available at the M-team meeting if the parent requests that in writing within 10 days of the date the board sent the notice of the M-team evaluation under sub. (1)(b).

* * *

(6) REEVALUATION. (a) A board shall initiate a reevaluation for each child who is receiving special education as follows:
1. No later than 3 years from the date the last M-team report completed on the child was approved under sub. (5) (d).

* * *

(b) Any board and M-team that is conducting a reevaluation shall comply with the requirements under this section.

* * *

FINDINGS OF FACT:

In January 1998, the child whose education is the subject of this complaint was five years old, enrolled in kindergarten, and supported through an early childhood program and speech and language services. On January 29, 1998, the district held a multidisciplinary team (M-team) meeting to comply with the triennial M-team reevaluation requirement. The child's previous M-team report was approved by the district's special education director on February 1, 1995. The November 14, 1997, M-team reevaluation notice for this meeting includes the following statement:

Following the evaluation, a meeting will be held to discuss the findings. You will be invited to the meeting. If you would like to have the individual evaluation reports available at the meeting, you must inform us in writing within 10 days of the date of this notice¿.

On November 18, 1997, the parent requested in writing that individual evaluation reports be available at the M-team meeting. On January 29, 1998, the district conducted the M-team meeting, which was attended by the child's mother. The M-team members were a school psychologist, speech and language pathologist, early childhood teacher, kindergarten teacher, and school social worker. Copies of the written individual evaluation reports from the school psychologist, speech and language pathologist, and early childhood teacher were given to the parent at the meeting. The social worker's written report was read at the meeting and the child's mother was asked if she would like a copy before the meeting or after the meeting. The child's mother left the meeting without a copy of the social worker's report. The report was copied and delivered to the parent's home January 30, 1998. The kindergarten teacher did not have a completed written report at the meeting. The kindergarten teacher's report was written a few days after the meeting and provided to the parent.

CONCLUSION:

Under the law which was in effect at the time covered by this issue of the complaint, whenever a school district proposed to conduct an M-team reevaluation of a child with EEN, the district was required to send the parent a written notice of its intent a reasonable time prior to conducting the reevaluation. If the parent notified the district in writing within ten days of receiving the district's notice that the parent was requesting to have copies of the M-team members' evaluation reports at the M-team meeting, the district was required to provide copies of the reports at the meeting. The complainant parent, within the required ten days, requested in writing that the district provide copies of the individual M-team member's evaluation reports at the M-team meeting, pursuant to s. PI 11.04(3)(g), Wis. Admin. Code. Therefore, the district was required to provide the parent copies of these reports at the meeting. The parent did not receive copies of all the M-team members' evaluation reports at the M-team meeting. There is a violation with regard to issue #2 in this complaint. However, the law relevant to this conclusion has been repealed. Current law requires that IEP team participants who conduct new testing as part of evaluation make copies of written summaries of findings available at IEP team meetings convened to evaluate or reevaluate a child. In submitting its corrective action plan the district must demonstrate that it is complying with current law in this regard. Because the district provided the parent copies of the individual M-team member's evaluation reports after the M-team meeting, the department is not requiring child-specific corrective actions.

_______________

DIRECTIVE:

The Waukesha School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) which demonstrates that the district ensures that each IEP team participant who administers tests, assessments, or other evaluation materials as part of an evaluation or reevaluation of a child prepares and makes available to all team participants at a team meeting a written summary of the participant's findings that will assist with program planning.

Because the district provided the parent copies of the individual M-team member's evaluation reports after the M-team meeting, 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.

_______________

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
8/10/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

jfd

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