IDEA Complaint Decision 99-055

On September 29, 1999 (letter dated September 19, 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. During this investigation, department staff reviewed the relevant education records of the child, documents provided by the complainant, and written statements submitted by the district in response to the complaint. In addition, department staff spoke by telephone with the complainant, the district's director of special education, the occupational therapist, the speech/language pathologist, the school psychologist, and the child's case manager from the Waukesha County Public Health Department.

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ISSUE #1:

During the 1998-99 school year, did the district fail to provide proper parental notice before evaluating the child?

ISSUE #2:

During the May 27, 1999, IEP team meeting, did the district fail to make available to all team participants the written summaries of findings prepared by participants who administered tests, assessments, or other evaluation materials as part of the evaluation of the child?

ISSUE #3:

During the 1998-99 school year, did the district improperly determine whether the complainant's son is a child with a disability by reason of other health impairment (OHI)?

APPLICABLE STATUTES AND RULES:

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

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(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.

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Section 115.782, Wisconsin Statutes
Evaluations.

(1) NOTICE; CONSENT. (a) The local educational agency shall notify the parents of the child, in accordance with s. 115.792, of any evaluation procedures the agency proposes to conduct, the qualifications of the individuals who will conduct the evaluation and their names, if known.

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(2) CONDUCT OF EVALUATION. (a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following:
1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities.
2. Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
3. Ensure all of the following:
a. That tests and other evaluation materials used to assess a child under this section are selected and administered so as not to be racially or culturally discriminatory and are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so.
b. That any standardized tests that are given to the child have been validated for the specific purpose for which they are used, are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of such tests.
c. That the child is assessed in all areas of suspected disability.
d. That assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are used.
(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.

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(c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b) 2.

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(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.
(3) DETERMINATION OF ELIGIBILITY FOR SPECIAL EDUCATION. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability.

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(b) If the individualized education program team determines that a child is a child with a disability, the team shall prepare an evaluation report that includes documentation of determination of eligibility. The local educational agency shall ask each individualized education program team participant if he or she wants a copy of the evaluation report or additional time before the individualized education program team develops the child's individualized education program. If any individualized education program team participant requests a copy of the evaluation report at any point in the process of developing the child's individualized education program or considering the child's educational placement, the local educational agency shall give a copy of the report to each individualized education program team participant before continuing with the process. If no individualized education program team participant requests a copy of the evaluation report, the local educational agency shall give a copy to the child's parents with the notice of placement under s. 115.792 (2).

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(4) REEVALUATIONS. (a) A local educational agency shall ensure that the individualized education program team does all of the following:

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2. Reevaluates a child with a disability in accordance with this section if the local educational agency determines that conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years.

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Section 115.792, Wisconsin Statutes
Procedural Safeguards.

(1) SAFEGUARDS ENSURED. (a) The local educational agency shall establish and maintain procedures to ensure all of the following:
1. That the parents of a child may examine all records relating to the child and may participate in meetings about the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education to the child, and may obtain an independent educational evaluation of the child.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child.

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(2) NOTICE. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78 (4).

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PI 11.35, Wisconsin Administrative Code
Eligibility Criteria.

(1) STANDARDS. Children shall be determined to have a handicapping condition who have been identified, evaluated and classified as handicapped pursuant to s. PI 11.04 and this section. The minimum criteria for the determination of handicapping condition and eligibility for special education shall be consistent throughout the state.

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(2) HANDICAPPING CONDITION.

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(k) Other health impairment. Other health impairment means having limited strength, vitality or alertness, due to chronic or acute health problems. The term includes but is not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, or acquired injuries to the brain caused by internal occurrences or degenerative conditions, which adversely affects a child's educational performance.

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34 CFR 300.7 Child with a disability.

(a) General. (1) As used in this part, the term child with a disability means a child evaluated in accordance with ss. 300.530-300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.

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(c) Definitions of disability terms. The terms used in this definition are defined as follows:

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(9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.

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34 CFR 300.532 Evaluation procedures.

Each public agency shall ensure, at a minimum, that the following requirements are met:

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(c)(1) Any standardized tests that are given to a child-- (i) Have been validated for the specific purpose for which they are used; and (ii) Are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests.

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FINDINGS OF FACT:

This complaint concerns the education of a child who, during the 1998-99 school year, was a first-grader in the Waukesha School District. The child was receiving special education services for 20 minutes twice a week for a speech and language disability, pursuant to his individualized education program (IEP). The district had also implemented a Section 504 plan for the child to accommodate his speech impairment and fatigue that could result from his metabolic disorder oxidizing fatty acids. The child is no longer a resident of the district and is now attending school in a different district.

On April 5, 1999, the child's mother requested in writing that the district evaluate the child for the disability of other health impaired (OHI) and asked that the evaluation include an occupational therapy (OT) assessment. On that same date, the district sent the parents written notice of reevaluation with a statement of parental rights/procedural safeguards. The notice of reevaluation listed the names of the IEP team participants and their qualifications to evaluate the child. The IEP team conducted a records review of existing data, including information provided by the child's mother, and determined that additional tests were needed.

On April 15, 1999, the district sent the parents a notice and consent for additional tests form as part of the reevaluation. The notice stated that the child would be evaluated in the areas of speech/language, academic achievement, attention/behavior, and motor functioning. For each evaluation area, the notice included a description of tests and the qualifications and names of the evaluators. The child's mother gave written consent for additional testing on April 23, 1999, and provided the district with a list of 21 documents for the IEP team to review as part of the reevaluation. These documents included such items as the child's report cards, the child's medical reports and diagnoses, a magazine article about mitochondrial disease, and letters from the child's mother and grandparents.

In addition, the school psychologist prepared a short memo to three of the child's regular education teachers that stated:

Please comment on whether you have observed any of the following characteristics in [student] and the extent to which they are adversely affecting him in the following areas: 1. Limited strength; 2. Limited vitality; 3. Limited alertness.

The memo solicited information the teachers had gained through day-to-day contact with the child. The teachers administered no test or other evaluative material to the child. The district did not list this memo in the description of tests and assessments on the notice and consent for additional tests form that was sent to the child's parents on April 15.

On May 6, 1999, the district sent the parents an invitation to an IEP team meeting to determine continuing eligibility for special education, review/revise the IEP, and determine continuing placement. Prior to the IEP team meeting, the 6 district staff members who were IEP team participants signed a form indicating that they had read all 21 documents on the list in advance of the meeting.

On May 27, 1999, the child's mother attended the IEP team meeting. The speech/language pathologist administered tests, assessments or other evaluation materials prior to the meeting. The complainant alleges that she did not receive a copy of the speech/language pathologist's summary of findings at the meeting. The speech/language pathologist asserts that she did provide copies of her summary of findings at the meeting and the school psychologist also maintains that copies of this document were distributed at the meeting. The cover sheet of the IEP developed at the meeting documents that each member of the team received copies of the summaries of findings from each IEP team participant who administered tests, assessments, or other evaluation materials. A copy of the speech/language pathologist's summary of findings was submitted to the department in response to the complaint.

IEP team participants stated that they discussed the issue of OHI eligibility for approximately one hour and considered information provided by the child's mother, tests and assessments, medical diagnoses and conditions, and teacher observations of the child. The IEP team determined that the child did not meet the eligibility criteria for OHI because the child did not exhibit limited strength, vitality, or alertness due to a chronic health condition that interfered with his academic, social, or behavioral performance at school. In the evaluation report, the district noted that this determination "is not consistent with [the mother's] observations of [the child] at home" and that "with [the child's] metabolic disorder, there is some risk of fatigue and attention difficulties that necessitate some regular education modifications." Those modifications were made in a child assistance plan attached to the IEP.

CONCLUSION:

When a school district proposes to evaluate or reevaluate a child with a disability, it must provide the child's parents with notice of the evaluation or reevaluation that includes, among other things, the qualifications of the evaluators and their names, if known, and a description of each evaluative procedure or test to be administered. A district must obtain parental consent before conducting additional testing as part of a reevaluation.

In this case, the district sent the child's parents a notice and consent for additional tests form on April 15, 1999. The notice listed the areas in which the child would be assessed, included a description of tests and other evaluation materials, and stated the qualifications and names of the evaluators. The notice did not refer to the memo to teachers requesting information about the child's strength, vitality, and alertness. The district was not required to include this memo on the notice and consent form because it did not direct teachers to administer tests or other evaluation materials to the child. The memo solicited information gained exclusively through the teachers' day-to-day contact with the child. The district's April 15 notice and consent for additional tests met legal requirements. There is no violation with regard to issue #1.

Each IEP team participant who administers tests, assessments, or other evaluation materials as part of an evaluation or reevaluation must 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. In this case, the complainant alleged that she did not receive summaries of each test and evaluation checklist administered as part of the reevaluation. The law requires that evaluators provide written summaries of their findings that will assist with program planning to IEP team participants at team meetings. These summaries should be brief and focussed on program planning. The law does not require that these summaries include a recitation of scores for each test or other evaluation material administered to the child. In this regard there is no violation with regard to issue #2. The complainant also alleges that she did not receive a copy of the speech and language pathologist's summary of findings. The department concludes that at the IEP team meeting held on May 27, 1999, the complainant was provided with a written summary of findings from the speech/language pathologist. In this regard there is no violation with regard to issue #2.

In conducting an evaluation or reevaluation, an IEP team must not use any single procedure as the sole criterion for determining whether a child is a child with a disability. The IEP team must use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, which may assist in determining whether the child is a child with a disability. If the IEP team uses standardized tests, such tests must be technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. The selection of appropriate assessment instruments and methodologies is appropriately left to state and local discretion.

The criteria for the determination of eligibility for special education are set forth in the Wisconsin Administrative Code. These criteria, including criteria for determining OHI, must be applied consistently throughout the state. In order to meet the criteria for the impairment of OHI, a child must have limited strength, vitality, or alertness due to chronic or acute health problems. The child's health problem must adversely affect his or her educational performance.

In this case, the complainant alleged that the IEP team improperly determined that her child did not meet OHI eligibility criteria because technically sound instruments were not used to evaluate the child, and the IEP team did not consider the information she provided. Specifically, the complainant alleged that the memo from the school psychologist to the child's teachers was not a technically sound instrument and that more standardized tests should have been used.

Four standardized tests were used in the reevaluation of the child. The memo from the school psychologist to the child's teachers asked for the teachers' observations of the child in the areas of strength, vitality, and alertness. It was not a standardized test subject to the legal requirements for standardized tests. Prior to the IEP team meeting on May 27, 1999, the 6 district staff members who were IEP team participants read 21 documents provided by the complainant. IEP team participants stated that, during the eligibility discussion at the May 27 meeting, they considered and discussed information provided by the child's mother, including medical diagnoses and conditions, as well as tests and assessments and teacher observations of the child. The IEP team did not rely upon any single procedure as the sole criterion for determining whether the child had an OHI disability. The IEP team determined that the child did not meet the eligibility criteria for OHI because the child did not exhibit limited strength, vitality, or alertness due to a chronic health condition that interfered with his academic, social, or behavioral performance at school. The IEP team applied the proper criteria when considering the child's eligibility for OHI. There is no violation with respect to issue #3.

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ISSUE #4:

Did the district fail to safeguard the confidentiality of information relating to the complainant's child during a telephone conversation with the complainant's advocate on May 28, 1999?

APPLICABLE STATUTES AND RULES:

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 it 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 118.125, Wisconsin Statutes
Pupil records.

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(1) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential * * *.

34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Disclosure" means to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means.

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"Education records" (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.

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34 CFR 300.571 Consent.

(a) Parental consent must be obtained before personally identifiable information is--
(1) Disclosed to anyone other than officials of participating agencies collecting or using the information under this part, subject to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement under this part.

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FINDINGS OF FACT:

At the complainant's request, the child's case manager from the Children with Special Health Care Needs Program of the Waukesha County Public Health Department participated in the child's May 27, 1999, IEP team meeting as the parent's advocate. The case manager has worked with the child and family for approximately four years and possesses a great quantity of documents and records containing confidential information about the child. The complainant had not signed a release allowing the district to provide confidential information from the child's pupil records to the advocate.

On May 28, 1999, the school psychologist called the parent's advocate. The school psychologist informed the department that she asked the advocate's opinion of the IEP team's performance and told the advocate that she did not want to discuss confidential information about the child. The advocate told the department that her conversation with the school psychologist focused on the IEP team meeting and how the child's mother felt about the meeting. Both the advocate and the school psychologist stated that the discussion did not focus on the child and that the school psychologist did not reveal any confidential personally identifiable information about the child that had not been disclosed at the IEP team meeting.

CONCLUSION:

A school district must preserve the confidentiality of personally identifiable information from a child's education records. Education records are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. Generally, a school district must obtain parental consent before personally identifiable information from an education record is disclosed.

The complainant invited the child's case manager from the Waukesha County Public Health Department to participate in the child's May 27 IEP team meeting as the parent's advocate. The case manager has worked with the child for about four years and possesses a large amount of confidential documents, records and information about the child. On May 28, 1999, the school psychologist called the parent advocate to ask her opinion about the IEP team meeting. According to the school psychologist and the advocate, their conversation was about the IEP team meeting, not the child, and confidential personally identifiable information about the child was not disclosed. Based upon these facts, there is no violation with regard to issue #4.

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ISSUE #5:

During the 1998-99 school year, did the district fail to report to the parent as specified in the child's IEP?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

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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 it 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.

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

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(h) A statement of all of the following:

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2. How the child's parents will be regularly informed, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the effective period of the individualized education program.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31 (formerly 34 CFR 300, Appendix C, Question 45)

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

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FINDINGS OF FACT:

The child's 1998-99 IEP required that the child's parents would be informed of his progress towards speech and language goals through "conferences, monthly phone contact/parent visit to therapy, [and] notebook to and from home and private therapy."

The complainant alleges that she initiated every monthly phone call with the child's speech/language (S/L) pathologist and that no phone contact occurred in April and May 1999. The district agrees that the child's mother initiated the monthly phone contacts. The complainant had been informed of the S/L pathologist's daily schedule and called her during prep periods or after school. The S/L pathologist stated that the complainant had not informed her that it was a problem to initiate the phone calls.

The complainant and the district both state that, in April 1999, the complainant called the S/L pathologist and left a voice mail message and that the S/L pathologist returned the call and left a voice mail message for the complainant. Both parties also agree that the S/L pathologist stated in her message that she did not have any additional information to relay about the child other than what was in the communication notebook, but that the complainant should call her back with any questions. The complainant did not call back.

The district acknowledges that no telephone contact occurred in May 1999, nor did the parent attend a therapy session. The S/L pathologist stated that the telephone contact did not occur in May because the child's IEP goals were fully discussed at the May 27 IEP team meeting. The complainant alleges that all of the child's IEP goals were not specifically discussed at the May 27 meeting. At that meeting, the child was determined to have a continuing speech/language disability, and the new IEP developed for the child at the meeting contains speech/language goals.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education and related services in conformity with a proper IEP. The IEP must specify how the child's parents will be regularly informed, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals.

The child's 1998-99 IEP required that the district inform the parents of the child's progress towards speech/language goals through monthly phone contact or parental visit to therapy. The complainant initiated the monthly phone calls to the S/L pathologist. The IEP did not specify who is to initiate the phone calls, and the complainant did not inform the district that she wanted the district to initiate the calls. The complainant and the S/L pathologist traded phone calls in April 1999, and the S/L pathologist invited the complainant to call her back with any questions. The district acknowledges that no telephone contact occurred in May 1999, and the parent did not attend a therapy session. However, the IEP team participants, including the complainant, discussed the child's speech/language goals at the May 27 IEP team and revised the speech/language goals in the child's new IEP. This personal meeting between the complainant and district staff, including the S/L pathologist, met the requirement to inform the parent of the child's progress towards speech/language goals. Therefore, there is no violation with regard to issue #5.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. 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
11/30/99
____________________________________________
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