IDEA Complaint Decision 99-060

On November 16, 1999 (letter dated November 11, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Appleton Area 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 statements by the complainant and the school district and relevant educational records. In addition, staff interviewed by telephone the following people: the mother; a special education supervisor and secretary; and the child's principal, speech and language therapist, and special education teacher.

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ISSUE #1:

Did the district fail to provide the parents with a copy of their child's IEP in a timely manner during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes
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.

* * *

Section 115.78, Wisconsin Statutes
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.

* * *

(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

* * *

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

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

(3) DEVELOPMENT.

* * *

(e) The local educational agency shall give a copy of the child's individualized education program to the child's parents with the notice of placement under s. 115.792 (2).

* * *

Section 115, Wisconsin Statutes
115.792 Procedural safeguards.

(1) SAFEGUARDS ENSURED.

* * *

(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.

* * *

(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 action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected these 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 refusals.
(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).

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Office of Special Education Programs, Letter to Evans (May 9, 1991), 17 EHLR 1105

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Federal regulations require¿that public agencies provide parents with written notice¿a reasonable time before the agency proposes to change the provision of a free appropriate public education (FAPE) to a child with a disability. A change in the IEP for a child would constitute a change in the provision of FAPE, and the public agency would therefore be required to provide written notice * * *

FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Appleton Area School District. The district determined she has impairments in the areas of cognitive disabilities and speech/language and, as a result of that determination, needs special education and related services. She receives special education and related services at a public school in the Appleton Area School District.

On October 6, 1998, the district convened an IEP team meeting to review and revise, if necessary, the child's IEP and determine continuing placement. A Notice of Placement dated October 6, 1998, indicates that the IEP developed on October 6, 1998, was to be implemented effective October 7, 1998. In part, the notice reads, "Copies of the evaluation report and the IEP are enclosed or attached."

The parents received a copy of the October 6, 1998, IEP. The parents made notes and comments on that copy and returned it to the school district.

On December 16, 1998, the district convened an IEP team meeting to review and revise, if necessary, the child's IEP. The IEP team modified several of the objectives in the child's IEP with regard to the goal of increasing oral motor and expressive language skills to above baseline. The parents received a copy of the revised objectives. The parents did not receive a written notice or a copy of the complete IEP.

There were no other IEP team meetings during the 1998-99 school year.

CONCLUSION:

Whenever a district proposes to initiate or change the provision of FAPE to a child, including implementing a revised IEP, the district must provide the child's parent a prior notice that meets the requirements of the law. The notice must include a description of the action proposed by the district and a description of all factors that are relevant to the action. The district shall give a copy of the child's IEP to the child's parents with the notice of placement.

Here, the district provided the parents a copy of the IEP developed on October 6, 1998. During the December 16, 1998, IEP team meeting, the IEP team changed the IEP when it revised the child's goals and objectives. The district did not provide the parents written notice of the change nor a copy of the child's IEP as modified on December 16, 1998. There is a violation in this regard to issue #1.

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ISSUE #2:

Did the district, from the beginning of the 1999-2000 school year until October 7, 1999, fail to implement provisions of the child's IEP with respect to speech therapy?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes
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.

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

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

* * *

(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 * * *.

* * *

(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31

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:

The IEP in effect for the child between the beginning of the 1999-2000 school year and October 6, 1999, required the district to provide speech and language services twice a week for thirty minutes in the "speech room." During that time period, the location in which the services were provided varied between the speech room and the special education room. The location of the services was important to the parents because services provided in the speech room were, per district practice, one-to-one. Services provided in the special education room were provided to a group of children.

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 the location of the services.

Here, the IEP in effect during the 1999-2000 school year until October 6, 1999, identified the appropriate location for speech and language services as the speech room. The speech services were not always provided in this location. Issue #2 is substantiated in this regard.

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ISSUE #3:

Did the district include in the child's IEP provisions not considered at the September 15, 1999, meeting?

ISSUE #4:

Did the district fail to ensure that an IEP team developed and revised the child's IEP during the 1999-2000 school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(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.

* * *

Section 115.77, Wisconsin Statutes
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.

* * *

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

* * *

(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

* * *

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

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

* * *

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

* * *

(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 * * *.

* * *

(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

* * *

Section 115.792, Wisconsin Statutes
Procedural safeguards.

(1) SAFEGUARDS ENSURED. * * *
(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. * * *
(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 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 description of any other factors that are relevant to the local educational agency's proposal or refusal.
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78(4).

* * *

34 CFR 300.345 Parent participation.

(a) Public agency responsibility - general. Each public agency shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded to opportunity to participate * * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Questions 5 and 9

5. What is the role of the parents¿in decisions regarding the educational program of their children?

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents (1) provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child; (2) participate in discussions about their child's need for special education and related services and supplementary aids and services, and (3) join with the other participants in deciding¿what services the agency will provide to the child and in what setting.¿Part B specifically provides that parents of children with disabilities -¿have their concerns and the information that they provide regarding their child considered in developing and reviewing their child's IEPs* * *

9. What is a public agency's responsibility if it is not possible to reach consensus on what services should be included in a child's IEP?

The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child's needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs. * * *

The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority "vote." If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing. * * *

Department of Public Instruction Information Update Bulletin 98.10, Question 20

20. What is the LEA to do if the school staff on the IEP team agree but parents disagree with the school staff?

Both state and federal law contain provisions under procedural safeguards on how to proceed whenever a parents does not agree with an IEP team's determination of a child's eligibility or continued eligibility for special education and related services, need for special education, IEP content, placement, or provision of FAPE [Sec. 115, Wis. Stats. And IDEA 1997]. The LEA must provide prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation, placement, or provision of FAPE to a child [Sec. 115.792, Wis. Stats.].

* * *

FINDINGS OF FACT:

The parents, in the complaint letter, stated that the IEP team did not determine the speech and language services for the child during a September 15, 1999, IEP team meeting. Specifically, the parents stated that the IEP team did not discuss the revision that the speech services would be provided in the "speech room or special education room." The previous IEP had identified the location for speech and language services as the "speech room." The difference - important to the parents - was that services provided in the speech room were, per district practice, individual therapy sessions whereas services provided in the special education room were, per district practice, group therapy sessions.

The parents, a local educational agency (LEA) representative, two special education teachers, the regular education teacher, the speech and language therapist, the physical therapist, and the nurse participated in the September 15, 1999, IEP team meeting. At the meeting, the IEP team revised the IEP via a new process, led by a district staff person. The IEP team brainstormed about the general strengths and needs of the child, but the members did not discuss the amount, frequency, duration, or location of specific services. After the meeting, district staff revised the IEP and determined the amount, frequency, duration, and location of specific services. This IEP was implemented October 7, 1999.

When the parents received a copy of the IEP, they contacted the district and expressed their disagreement over the fact that the speech and language services were not individually provided. In response, the district convened an IEP team meeting on October 20, 1999, to address this issue. The parents attended the meeting and discussed options for the provision of speech and language services, including individual services. At that meeting, the team could not reach consensus on the provision of speech and language services and agreed to continue the discussion on November 11, 1999.

The district held an IEP team meeting on November 11, 1999. Attending the meeting were the following people: the parents, an LEA representative, a special education teacher, a regular education teacher, a speech and language therapist, the principal, and three advocates for the parents. In their complaint, the parents stated that the speech and language therapist determined the location (and, because of district practice, that the services would not be one-to-one) of speech and language services, and that the decision was not made by the IEP team.

During the meeting on November 11, 1999, the parents stated that they felt the appropriate services should be one-on-one, provided in the speech and language room. The team discussed different options, including individual services, and attempted to reach a consensus. While all district staff felt that one-to-one services would be beneficial, the staff did not believe that the appropriate speech and language services could be provided solely through individual therapy. The IEP from this meeting did not require the district to provide speech and language therapy individually to the child.

The district sent a Notice of Placement to the parents dated December 2, 1999. The Notice of Placement contains a note that reads, "Parents requested individual `one to one' speech/language services provided by a speech/language clinician. However, the district IEP team members did not concur with this request." The Notice of Placement indicated that the IEP would be implemented as of October 21, 1999.

CONCLUSION:

A school district has a responsibility to provide a FAPE to each child with a disability. The district must develop and implement an IEP which specifies the special education and related services to be provided to meet a child's needs. A district must periodically review and, as necessary, revise a child's IEP. As part of their responsibilities, the IEP team which develops the child's educational program must determine the location of the special education and related services.

Here, the IEP team met on September 15, 1999, to develop an annual IEP. The team brainstormed about the child's general strengths and needs. However, the team did not determine the amount, frequency, duration or location of specific services, including speech and language services. There is a violation in this regard to issue #3.

The IEP meeting serves in part as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child's needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents' concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs.

The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program.

Here, the IEP team discussed the provision of speech and language services in IEP team meetings on October 20, 1999, and November 11, 1999. At both meetings, the team discussed several options for the provision of this service, including individual therapy. During the November 11, 1999, meeting, the district staff concurred that it was not appropriate to limit the services to individual instruction. As a result of that meeting, the district refused to change the provisions of FAPE to the child. The IEP reflected this decision.

A district must provide prior written notice whenever it "refuses to change" the provision of FAPE to a child. Ideally, a notice should be provided at or immediately following a meeting in which the district "refuses to change" the provision of FAPE to a child because the district must also continue to provide the services promised in the child's IEP. A notice similar to the Department's sample form M-3 (Notice of response to an activity requested by parent) would meet the legal requirement.

Here, the district refused to change the provision of FAPE on November 11, 1999. The district did not provide written notice to the parents of the refusal until December 2, 1999. The district continued to implement the IEP for approximately four weeks after it refused to change the IEP provisions regarding speech services. There is a violation in this regard to issue #4.

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DIRECTIVE:

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

  1. the district provides parents with prior written notice of a change in the provision of FAPE and a copy of the IEP when it changes the IEP (issue #1);
  2. the district provides services in the location specified in the IEPs of children with disabilities (issue #2);
  3. an IEP team develops and revises the IEPs of children with disabilities, including determining the amount, frequency, duration and location of services (issue #3);
  4. the district provides parents with prior written notice of the district's refusal to change provisions in the IEPs (issue #4).

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP/SJP
1/18/00
_________________________________________
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