IDEA Complaint Decision 99-047

On August 12, 1999 (letter dated July 30, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the New Berlin 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 written materials and educational records provided by the complainant and the district. In addition, department staff interviewed the district director of student services, a student services secretary, the district guidance counselor/case manager and the parent by telephone.

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

ISSUE #1:

Did the district fail to evaluate a child in a timely manner, when the child's parents requested a special education evaluation during the 1998-99 school year?

ISSUE #2:

Did the district conduct individualized education program (IEP) team meetings on March 31, 1999, and May 11, 1999, without the required participants?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.77
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.

* * *

Wisconsin Statutes, Section 115.777
Special education referrals.

* * *

(2) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.

* * *

(3) A local educational agency shall do all of the following:

* * *

(b) Document and date the receipt of each referral.

* * *

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

* * *

(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:
(a) The parents of the child.
(b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment.
(c) At least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability as specified in s. 115.76 (5) (a) or, where appropriate, at least one special education provider of the child.
(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.
(e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f).
(f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.
(g) Whenever appropriate, the child.
(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.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under s. 115.777 or initiates a reevaluation of the child under s. 115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.

* * *

Wisconsin Statutes, Section 115.79
Educational placements.

Each local educational agency shall ensure that all of the following occur:
(1) An evaluation is conducted under s. 115.782 before special education and related services are provided to a child with a disability.
(2) An educational placement is provided to implement a child's individualized education program.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300 Appendix A, Questions 22, 24, 27

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

The IEP team must include a representative of the public agency who: (a) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (b) is knowledgeable about the general curriculum; and (c) is knowledgeable about the availability of resources of the public agency (Sec. 300.344(a)(4)).

Each public agency may determine which specific staff member will serve as the agency representative in a particular IEP meeting, so long as the individual meets these requirements. It is important, however, that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided.

A public agency may designate another public agency member of the IEP team to also serve as the agency representative, so long as that individual meets the requirements of Sec. 300.344(a)(4).

* * *

24. What is the role of a regular education teacher in the development, review and revision of the IEP for a child who is, or may be, participating in the regular education environment?

As required by Sec. 300.344(a)(2), the IEP team for a child with a disability must include at least one regular education teacher of the child if the child is, or may be, participating in the regular education environment. Section 300.346(d) further specifies that the regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in--(1) the determination of appropriate positive behavioral interventions and strategies for the child; and (2) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with 300.347(a)(3) (Sec. 300.344(d)).

Thus, while a regular education teacher must be a member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child's needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting.

* * *

27. For a child whose primary disability is a speech impairment, may a public agency meet its responsibility under Sec. 300.344(a)(3) to ensure that the IEP team includes "at least one special education teacher, or, if appropriate, at least one special education provider of the child" by including a speech-language pathologist on the IEP team?

Yes, if speech is considered special education under State standards. As with other children with disabilities, the IEP team must also include at least one of the child's regular education teachers if the child is, or may be, participating in the regular education environment.

FINDINGS OF FACT:

The child whose education is the subject of this complaint was six years old and in the first grade during the 1998-99 school year. In a letter dated January 8, 1999, the child was referred by his mother for an IEP team evaluation in the areas of learning disabilities (LD), speech or language impairments, and occupational therapy (OT). The local educational agency (LEA) received the referral letter January 13, 1999, when it documented and dated receipt of the letter. On February 8, 1999, the LEA appointed an IEP team consisting of a principal as the representative of the LEA, a learning disabilities special education teacher, a school psychologist, a first grade regular education teacher of the child, an occupational therapist, a speech and language therapist, and a guidance counselor. April 13, 1999, is 90 days after the LEA received the special education referral for the child.

On March 31, 1999, the LEA conducted an IEP team meeting, which the child's parents attended with an early childhood specialist invited by the child's parents. The LEA staff at the IEP team meeting included a principal as the representative of the LEA, a learning disabilities special education teacher, a school psychologist, two first grade regular education teachers of the child, an occupational therapist, a speech and language therapist and a guidance counselor. The invitation to the meeting of the IEP team included a reading specialist who did not attend the meeting. One of the first grade regular education teachers and the LEA representative left the meeting before the meeting was completed. The meeting was approximately two hours in length. The teacher and LEA representative left after about 20 minutes. The IEP team determined that the child did not meet the criteria for LD or speech and language impairments. The child's parents suspected their child may have a disability in the area of other health impairments (OHI) due to his attention deficit disorder and requested that the IEP team evaluate him for OHI. The child's parents agreed in writing to extend the 90-day evaluation time limit to May 15, 1999.

On May 11, 1999, the LEA conducted an IEP team meeting, which the child's parents attended. The LEA staff at the IEP team meeting included a principal as the representative of the LEA, a school psychologist, two first grade regular education teachers of the child, a reading specialist, an occupational therapist, a speech and language therapist, and a guidance counselor. A special education teacher did not attend the meeting. The LEA representative left the meeting before the meeting was completed. The LEA representative was at the meeting for the first 30 minutes of the two-hour meeting. The LEA representative left the meeting before the team wrote the child's IEP or determined the child's educational placement. The IEP team determined that the child meets the criteria for OHI and needs special education and the related service of OT. The IEP team developed an IEP for the child and determined the special education placement. On May 11, 1999, the LEA notified the child's parents of the educational placement of their child and the child's mother signed consent and permission for initial placement.

The May 11, 1999, notice of placement states that May 11, 1999, is the projected date of implementation of placement. The child did not receive special education or related services between May 11, 1999, and June 4, 1999. The district scheduled a June 3, 1999, IEP team meeting before implementing the placement because the district believed not all required IEP team participants were present at the May 11, 1999, IEP team meeting. The district recognized that a special education teacher was not present at the meeting and the LEA representative attended only a portion of the meeting. The district requested that the child's parent agree to a second specific extension of time beyond the 90-day time limit. The parent did not agree to an extension. The district did not request a specific extension of time beyond the 90-day time limit from DPI.

On June 3, 1999, the LEA conducted an IEP team meeting, which the child's parents attended. The LEA staff at the IEP team meeting included a program support teacher as the representative of the LEA, a learning disabilities special education teacher, a school psychologist, two first grade regular education teachers of the child, an occupational therapist, and a guidance counselor. The child's May 11, 1999, IEP was revised and placement determined with special education services to begin August 23, 1999. The child's parent initialed and dated the previously signed May 11, 1999, consent and permission for initial placement.

CONCLUSION:

An LEA must document and date the receipt of each referral and appoint an IEP team for each child referred to it. The IEP team must evaluate the child, within the time period required by state law, in all areas of suspected disability. The local educational agency must notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral. Before the expiration of the 90-day time limit, if the local educational agency needs an extension, it must inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of the time limit. If the parent does not agree, the local educational agency may request an extension from the department. An LEA must provide an educational placement to implement a child's IEP.

On January 13, 1999, the LEA received the parents' referral letter. The local educational agency did not notify the parents of the educational placement of their child within 90 days after the local educational agency received the special education referral. However, before the expiration of the 90-day time limit, the child's parent agreed in writing to extend the time limit to May 15, 1999. On May 11, 1999, at an IEP team meeting the LEA notified the child's parents of the educational placement of their child and the child's mother signed consent and permission for initial placement. The LEA notified the parents of the educational placement of their child within the specific extension of time agreed to in writing. The May 11, 1999, notice of placement states that May 11, 1999, is the projected date of implementation of placement. However the LEA determined that the process had not properly been completed because not all required staff were present at the May 11 meeting and scheduled another IEP meeting for June 3. The district sought another extension from the parents, which the parents declined. The LEA did not seek an extension from the department. The child's IEP and placement were modified at the June 3rd meeting. The LEA did not provide an educational placement for the child to implement the child's IEP between May 11, 1999, and June 4, 1999. There is a violation with regard to this element of issue #1.

An LEA must appoint an IEP team for each child referred for special education services. Each IEP team must include, among others, a representative of the district 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. An LEA may designate another LEA participant on the IEP team to also serve as the agency representative, so long as the individual meets these requirements. Each team also must include at least one regular education teacher of the child and at least one special education teacher who has extensive and recent training and experience related to the child's known or suspected disability. The special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP. If the child's disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist.

On March 31, 1999, and May 11, 1999, the LEA held IEP team meetings to evaluate the child and determine eligibility for special education, develop an IEP, and determine the special education placement for the child whose education is the subject of this complaint. The LEA appointed the required people to the IEP team for the child. A school principal participated as the LEA representative in the IEP meetings but attended only a portion of each meeting. The agency representative must have the authority to commit agency resources and be able to ensure whatever services are set out in the IEP actually will be provided. In order to do this it is necessary for the LEA representative to be present at the IEP team meeting when these decisions are made. The LEA recognized the importance of the requirement to have an LEA representative present at the IEP team meeting and scheduled another IEP team meeting June 3 ensuring that an LEA representative was present.

One of the child's two regular education teachers also attended only a portion of the March 11, 1999, IEP team meeting. However the IEP team need not include more than one regular education teacher of the child. The IEP teams included a special education learning disabilities teacher and a speech and language pathologist. The May 11, 1999, IEP meeting was attended by the speech and language pathologist. Another special education teacher or provider did not attend the meeting. If the child's disability is a speech impairment, the special education teacher on the IEP team could be the speech and language pathologist. However, on March 31, 1999, the IEP team determined that the child did not meet the criteria for speech and language impairments. Consequently, the speech and language pathologist could not serve as the special education teacher during the May 11, 1999, meeting. The LEA recognized this error and scheduled another IEP meeting for June 3, 1999. All required IEP team participants attended this IEP team meeting. There is a violation with regard to issue #2.

_______________

DIRECTIVE:

The New Berlin School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district will:

  1. timely evaluate and provide educational placements and special education services to implement the IEPs for all children with disabilities.
  2. conduct an IEP team meeting to consider whether the child whose education is the subject of this complaint requires additional services because of the delay in providing FAPE.
  3. conduct IEP team meetings with all the required participants in attendance.

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
10/11/99
_______________________________________________
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