IDEA Complaint Decision 99-059

On November 2, 1999 (letter dated October 30, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the McFarland 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 relevant education records of the child, documents submitted by the complainant, and written statements provided by the district. Department staff spoke with the complainant, the district's director of integrated student services, the associate principal, the special education teacher, the recess monitor, and the lunchroom supervisor. In addition, department staff interviewed the first semester teachers for the following classes: Primetime, algebra, physical education, art, science, and study group.

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ISSUE #1:

Did the district fail to provide the parent with proper notice of an individualized education program (IEP) team meeting?

APPLICABLE STATUTES AND RULES:

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

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(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:

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

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:

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2. Revise the individualized education program as appropriate to address all of the following:
a. Any lack of expected progress toward the annual goals and in the general curriculum.
b. The results of any reevaluation conducted under s. 115.782.
c. Information about the child provided to or by the child's parents, as described in s. 115.782.
d. The child's anticipated needs.
e. Other matters.

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34 CFR 300.501 Opportunity to examine records; parent participation in meetings.

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(a) General. The parents of a child with a disability must be afforded, in accordance with the procedures of ss. 300.562-300.569, an opportunity to --
(2) Participate in meetings with respect to --
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) Each public agency shall provide notice consistent with s. 300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section.

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34 CFR 300.345 Parent participation.

(a) Each public agency shall take steps to ensure that one or both of the parents of the child with a disability are present at each meeting or are afforded the opportunity to participate, including --
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) * * * (1) The notice under paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance;

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(d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as --
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

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34 CFR 300.523 Manifestation determination review.

(a) General. If an action is contemplated regarding behavior described in s. 300.520(a)(2) or 300.521, or involving a removal that constitutes a change of placement under s. 300.519 for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children --

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(2) Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.
(b) Individuals to carry out review. A review described in paragraph (a) of this section must be conducted by the IEP team and other qualified personnel in a meeting.

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(e) Meeting. The review described in paragraph (a) of this section may be conducted at the same IEP meeting that is convened under s. 300.520(b).

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Attachment 1¿Analysis of Comments and Changes (64 FR 12587)

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The key factor in s. 300.345(a) is that public agencies effectively communicate with parents about the up-coming IEP meeting, and attempt to arrange a mutually agreed upon time and place for the meeting.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the McFarland School District. The McFarland School District determined that the child has a serious emotional disturbance (ED) and, as a result, needs special education and related services. The child attends a public school in McFarland.

On October 21, 1999, the child physically attacked another student. When the recess monitor intervened, the child hit the monitor and pursued the child he had originally attacked. Within a minute or two--before the recess monitor had a chance to contact anyone--the student continued his physical attack on the student inside the building. The lunch supervisor intervened. The child stated he wanted to go to the ED classroom, and while the lunch supervisor was ensuring the safety of the child under attack, he escorted himself to that room.

Meanwhile, the associate principal attempted to contact the mother and successfully contacted the school-police liaison officer. The officer reported to the associate principal's office, where they contacted the mother and conversed via speakerphone. The officer indicated to the mother that it was a very serious incident, that he needed to interview the student, and that the mother could pick up the student at the police station.

As a result of the incident, district staff discussed the possibility of expulsion. Before deciding to take that action, the staff agreed to conduct a manifestation determination.

The associate principal stated that, on October 25, 1999, she attempted to reach the mother. She was unable to reach her at work, and so she left a message on the mother's home voice mail system. The message indicated that the district scheduled an IEP team meeting on October 27, 1999, and that the invitation was in the mail. The mother stated that she did not receive the voice mail message from the assistant principal. District staff did not attempt to reach the mother at work again.

Also on October 25, 1999, the special education director mailed to the mother an invitation to an IEP team meeting (to conduct a manifestation determination and review the child's IEP). The mother did not receive this invitation until October 28, 1999.

On October 27, 1999, a district staff person called the residence of the child and mother. The mother was not available, so the staff person left a message regarding the IEP team meeting to be held that afternoon. The mother states that she did not receive this message.

The mother did not attend the IEP team meeting on October 27, 1999. On the cover page of the IEP revised at this meeting, the district documented three attempts to ensure parent participation: the phone message left on October 25, 1999, the written invitation mailed on October 25, 1999, and the phone message left on October 27, 1999.

At the meeting, it was determined that the behavior exhibited on October 21, 1999, was a manifestation of the child's disability. The team reviewed the IEP and revised it to include an escort schedule for all unstructured passing times and a provision that the child would spend recess in the ED classroom, teaching chess to other students and tutoring younger students in math.

On October 28, 1999, the mother called the Director of Integrated Student Services. She expressed concern that she was not present at the IEP team meeting. The Director explained that the district was required to hold the manifestation determination within a specific time period and that she was willing to schedule another IEP team meeting to review and revise, if necessary, the child's IEP.

CONCLUSION:

When a LEA contemplates a disciplinary removal that constitutes a change of placement for a child with a disability, the LEA is required to review the behavior of the child in a process called a "manifestation determination." During the manifestation determination, an IEP team must examine the relationship between the child's disability and the behavior subject to the disciplinary action. Behavior that is a manifestation of the child's disability cannot be punished by a disciplinary removal that constitutes a change of placement.

In this case, the LEA considered expulsion of the child, which would constitute a change of placement. The LEA, therefore, determined that a manifestation determination was needed. Because the IEP team is required to meet and conduct the manifestation determination, rules regarding parental participation apply. An LEA must ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including scheduling the meeting at a mutually agreed on time and place. Within a reasonable amount of time prior to the meeting, the LEA must notify the parents of the meeting; the notification must include the purpose, time, and location of the meeting; who will be in attendance; and the legal provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child.

On October 25, district staff attempted to notify the parent of the October 27 IEP team meeting by calling her at work, but did not leave a message after learning that she was not available to take the call. After failing to reach the parent at work, on October 25 district staff tried calling her at home, and again failing to speak with her left a voice mail message for her. Following these attempts, district staff, also on October 25, mailed an invitation to attend the meeting. The written invitation, however, did not arrive at the mother's residence until the day after the meeting. The district made no attempt to contact the parent on October 26. On October 27, the day of the meeting, district staff again attempted, unsuccessfully, to reach the parent by telephone and again left a message. The parent was not in attendance at the IEP team meeting. Under the circumstances, district staff did not take action sufficient to ensure that the parent was notified of the October 27, 1999, IEP team meeting a reasonable amount of time prior to the meeting. Issue #1 of the complaint is substantiated. When the parent complained about her inability to attend the October 27 meeting, the district offered to conduct on additional IEP team meeting. Therefore, the district will not be directed to take further specific corrective action with regard to this child on this issue.

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ISSUE #2:

Did the district fail to implement provisions of the child's IEP relating to student behavior?

ISSUE #3:

Did the district fail to ensure that staff responsible for implementing the child's IEP were informed of his or her specific responsibilities in the IEP?

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 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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(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. * * *
(3) DEVELOPMENT. * * *
(c) 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 300.342 When IEPs must be in effect.

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(b) Implementation of IEPs. Each public agency shall ensure that--
(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of--
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 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. * * *

FINDINGS OF FACT:

From the beginning of school until September 29, 1999, the district was required to provide special education and related services to the child consistent with an IEP developed on February 10, 1999. The IEP included a behavior plan which read, in relevant part: "he could ask to leave class to come to [the ED classroom] for cool down. Teacher notified [the ED teacher]. Teacher could also ask for [the child] to leave for cool down. [The child] would leave to come down. Teacher notified [the ED teacher]."

At the beginning of the school year, the regular education teachers received a Student Profile for each of their students with disabilities or with other special needs. The Student Profile for the student whose education is the subject of this investigation includes information on the following areas: the child's skill levels, learning styles, areas of strengths and weaknesses, IEP goals, required modifications, and behavior concerns. In none of these areas was the behavior plan referenced or described. At the bottom of page 2, there is a space to mark reading, "See attached Behavioral Plan." This space was not marked and a behavior plan was not attached.

While it was not communicated in writing, several regular education teachers knew that it was their responsibility to allow the child to leave, or to ask the child to leave, when it was clear he needed to "cool down." During interviews, these teachers could not recollect how or when they learned of their duties. Other teachers did not know about their responsibilities under the February 10, 1999, IEP. These teachers stated that the primary reason they didn't know about the provisions was because they had no trouble with the child in their classroom, and so they didn't meet with the special education teacher about the child as they did with other children with behavior difficulties.

The district convened an IEP team meeting on September 27, 1999, to review and revise, if necessary, the child's IEP. The revised IEP, in part, requires school staff to monitor the child during unstructured activities for peer interactions. In addition, the following supplementary aids and services are provided to or on behalf of the student in regular education or other educational settings: "(1) ED teacher or assistant principal to be initial contact for [the child] during any episodes of inappropriate behavior; (2) Parent will be contacted prior to police interrogation/intervention (if occurs) for unsafe school behavior; (3) Teachers will permit [the child] to remove self from classroom as needed with no penalty for missing academics."

The child's Student Profile was not updated and re-sent to regular education teachers, or other district staff responsible for its implementation after the September 27, 1999, IEP team meeting. The special education teacher explained these provisions to the regular education teachers at a meeting. The district did not communicate the provisions to the lunch room supervisor or the recess monitor, who had responsibility for initially contacting the ED teacher or assistant principal in case of inappropriate behavior and for monitoring the child during unstructured activities.

On October 21, 1999, the child physically attacked another student. When the recess monitor intervened, the child hit the monitor and pursued the child he had originally attacked. Within a minute or two--before the recess monitor had a chance to contact anyone--the student continued his physical attack on the student inside the building. The lunch supervisor intervened. The child stated he wanted to go to the ED classroom, and while the teacher was ensuring the safety of the child under attack, he escorted himself to that room.

Meanwhile, the associate principal attempted to contact the mother and successfully contacted the school-police liaison officer. The officer reported to the associate principal's office, where they contacted the mother and conversed via speakerphone. The officer indicated to the mother that it was a very serious incident, that he needed to interview the student, and that the mother could pick up the student at the police station.

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 special education and related services to meet the child's needs, including a behavior plan for children whose behavior impedes his or her learning or that of others. Regular education teachers and other service providers responsible for its implementation must have knowledge of and implement relevant portions of a child's IEP.

On October 21, 1999, the child displayed inappropriate behavior. After he was physically separated from the other child, he immediately went to the ED classroom, per his IEP. Before the police officer interviewed the child, the associate principal and the police officer talked to the mother on the telephone, again per his IEP. There is no violation regarding issue #2.

With regard to informing the regular education teachers and other service providers of their responsibilities, the district did provide written information with respect to the special needs of the child. However, the Student Profile includes neither the behavior plan nor the aspects of the behavior plan for which the regular education teachers were responsible. While some regular education teachers recollect their responsibilities under the February 10, 1999, IEP, other teachers did not have knowledge of that IEP's relevant portions.

When the IEP team reconvened on September 27, 1999, new provisions were written that required implementation by regular education teachers and other service providers, including the recess monitor and lunchroom supervisor. The district informed the regular education teachers of the new provisions in the IEP and their responsibilities; the district did not inform other service providers, including the recess monitor and the lunchroom supervisor. The complaint is substantiated with regard to issue #3.

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DIRECTIVE:

The McFarland 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:

  1. notifies the parents of children with disabilities within a reasonable amount of time prior to an IEP team meeting and schedules IEP team meetings at a time and place mutually agreed upon with the parents (issue #1);
  2. ensures that each regular or special education teacher and each related services or other service provider who is responsible for implementing provisions in a child's IEP is informed of his or her specific responsibilities related to implementing this child's IEP and the IEPs of all children with disabilities (issue #3);

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
2/2/00
_________________________________________
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