IDEA Complaint Decision 99-061

On November 2, 1999 (letter dated October 25, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. 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 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff reviewed correspondence and relevant pupil records from the complainants and the school district. Department staff also had discussions with the complainants, an advocate, special education supervisors, a special education teacher, and a speech and language teacher.

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ISSUE #1:

Did the district revise the program modifications and short-term objectives contained in complainants' son's individualized education program (IEP) dated August 2, 1999, without conducting an IEP team meeting?

ISSUE #2:

Did the district improperly identify complainants' son's speech and language impairment as a related service without conducting an IEP team meeting?

ISSUE #3:

Did the district fail to implement complainants' son's August 2, 1999, IEP, as it relates to program modifications and behavior support plan?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:

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3. Speech or language impairments.

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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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(14) "Related services" means transportation and such developmental, corrective and other supportive services as may be required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; counseling services, including rehabilitative counseling; orientation and mobility services; medical services for diagnostic and evaluative purposes only; and the early identification and assessment of disabling conditions in children.

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(15) "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child's parents, to meet the unique needs of a child with a disability, including instruction in physical education.

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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 115.777. Each team shall consist of all of the following:
(a) The parents of the child.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under 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 115.787.
(c) Determine the special education placement for the child under 115.79.

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Section 115.782, Wisconsin Statutes
Evaluations.

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(2) CONDUCT OF EVALUATION.

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(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, 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. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.

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(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 * * *¿
(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¿If no individualized education program team participant requests a copy of the evaluation report, the local education agency shall give a copy to the child's parents with the notice of placement.

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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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(b) A statement of measurable annual goals for the child, including benchmarks or short-term objectives, related to meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and to meeting each of the child's other educational needs that result from the child's disability.
(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 * * *

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(3) DEVELOPMENT.

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(b) 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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Sec. 300.342 When IEPs must be in effect.

(a) General. At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that--
(1) An IEP--
(i) Is in effect before special education and related services are provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings described under 300.343;

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Sec. 300.343 IEP meetings.

(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability * * *. (emphasis added)

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ADMINISTRATIVE AND 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:

The student whose education is the subject of this complaint receives special education services at the Milwaukee High School for the Arts (MHSA) during the 1999-2000 school year. The district reevaluated the student and developed his IEP during a series of IEP team meetings held on May 21, June 2, July 19, and August 2, 1999. The parent and parent advocate participated in the series of meetings. On August 2, 1999, the IEP team determined that the student is a student with the disabilities of autism and speech and language. The IEP team determined the student needs special education for autism. At the August 2, 1999, IEP team meeting, the parents also received a copy of their child's evaluation report along with their son's IEP and placement notice. The evaluation report that the parents received indicated that their son's disability was autism, instead of autism and speech and language, as had been determined by the IEP team. The district acknowledges the error made in the evaluation report given to the parents on August 2, 1999. The district then corrected the error by providing the parents with a revised, typewritten copy of the evaluation report on October 1, 1999, indicating the student's disabilities were autism and speech and language.

On August 2, 1999, the IEP team also completed the development of the student's IEP for the period beginning August 25, 1999, and ending August 25, 2000. The IEP team participants were given a copy of the child's IEP at the August 2, 1999, IEP team meeting. The copy of the IEP that the parents were given included both handwritten and typewritten sections. On August 24, 1999, a special education supervisor agreed to meet with the parents and advocate to clarify some issues regarding the child's August 2, 1999, IEP. At this meeting the parents presented the special education supervisor with numerous suggested revisions to their child's IEP. This meeting was not an IEP meeting. The parents also requested that the district give them a final copy of the August 2, 1999, IEP. On October 1, 1999, the district gave the parents a typewritten copy of their son's IEP that had been developed and agreed to at the August 2, 1999, IEP team meeting.

The complainants allege that the district revised the program modifications and short-term objectives in their son's August 2, 1999, IEP, without conducting an IEP meeting. The program modifications or supports section of the copy of the student's IEP, given to the parents at the August 2, 1999, IEP meeting (original version), indicates that the district will "Inservice all staff and key personnel involved with (child) by the end of first week of beginning of school." The typewritten version of the same section of the IEP that the parents received on October 1, 1999, indicates that the district will "Inservice all relative staff and key personnel involved with (child) by first week of September¿"

The program modifications or supports section of the original version of the student's August 2, 1999, IEP indicates "Staff participation in local meetings regarding Aspergers Syndrome within community." The October 1, 1999, typewritten version does not include this statement of program support for school personnel.

The original version of the student's August 2, 1999, IEP under the heading, "Current Classroom-Based Assessments and Observations," states that "(Teacher' name) is meeting (student) for three classroom hours per week to provide music instruction. His learning curve has increased, his span of attention, and ability to stay on-task, have significantly improved. He appears eager to learn, and is accepting of instruction. (Student) is not exhibiting the behavior difficulties that were earlier noted when he was in the regular school setting." The October 1, 1999, copy that the parents received included the language changes that appear in bold type: "His learning curve has increased, his span of attention, and ability to stay on-task, have significantly improved given the private in-home schedule. (Student) is reportedly not exhibiting the behavior difficulties that were noted earlier when he was at MHSA, and included within regular class setting."

The original version of the student's August 2, 1999, IEP includes an annual goal to provide "verbal prompts/assistance from a teacher/facilitator and that the student will develop basic organizational skills and learning strategies to support successful participation in the regular class situations." Two related short-term objectives state "(Student) requires assigned seating near the teacher or other supportive adults, and demonstrate techniques for finding information in textbooks and class notebooks." The student's August 2, 1999, IEP did not include any expected performance levels for measuring the attainment of the short-term objectives. The October 1, 1999, typewritten version included the following expected performance levels for measuring the attainment of the student's short-term objectives: 100 percent and 3/5 trials, respectively.

The original version of the student's August 2, 1999, IEP includes an annual goal that the student will participate in regular class situations which will reflect expectations required in employment situations. A related short-term objective states that the student will "utilize verbal communication to check (student's) understanding of directions. i.e., wait for feedback from (student's name)(verbal clarification)." The October 1, 1999, version of the same short-term objective provided the parents mentions "utilizing verbal communication (student) will receive and provide clarification to increase his understanding of initial teacher directives for all assignments."

The original version of the student's August 2, 1999, IEP includes an annual goal that the student will prepare/seek competitive employment in an area of interest and aptitude, expand current participation in community-based piano concerts, and prepare to apply for enrollment in a post-secondary educational facility. A related short-term objective states that the student will "prepare/seek employment in an area of interest." The October 1, 1999 version of the same short-term objective includes the above statement, but also adds the statement "prepare resume by June '00."

The complainants also allege that the district failed to implement their son's August 2, 1999, IEP as relates to his program modifications and behavioral support plan. The program modification or supports section of the student's August 2, 1999, IEP, requires the district to "inservice all staff and key personnel involved with (student) by the end of the first week of beginning of school." The district brought in a specialist in Asperger's Syndrome (autism) to inservice staff who worked with complainants' son. The inservice of all staff was not done until October.

The complainants' son's August 2, 1999, behavioral support plan states that "facilitator, parents and (student) will target 5 behaviors needed to succeed in mainstream." The facilitator has had an on-going discussion with the parents and son regarding his behaviors. At the time the complaint was filed, the facilitator and staff had been working with the student on his changing behaviors; however, the 5 behaviors have not been identified or targeted for the student to succeed in the mainstream classroom.

The complainant's' son's August 2, 1999, behavioral plan further requires that "(student's) schedule will include specific instructions and support for issues that are presently problematic for him. (e.g., Stop in rest room between Hours 3 and 4)" The facilitator provided encouragement and support for issues that are problems for the student. At the time the complaint was filed, the student's schedule did not include specific instructions for issues that are problems for the student, such as recognizing and differentiating between teasing and threats and teaching the student steps to resolve teasing and threats.

The complainants' son's August 2, 1999, behavioral plan further mentions that "support staff, facilitator (i.e. IEP Chairperson) & parent will develop with (student) a `Differential Reinforcement of Other Behavior' program as well as a program which utilizes reinforcement procedures that reinforce (student) for exhibiting behaviors that are incompatible with problem target behaviors. (In other words, (student) would receive acknowledgement and support for the occurrence of behaviors or responses that are incompatible with undesirable behaviors)." At the time the complaint was filed, the facilitator provided positive support to the student for the occurrence of behaviors or responses that are incompatible with undesirable behaviors, but not for the problem target behaviors. In addition, a "Differential Reinforcement of Other Behavior" program has not been developed.

CONCLUSION:

A school district must appoint an IEP team to evaluate a child to determine a child's eligibility or continued eligibility for special education and related services and to develop or revise an IEP for a child with a disability. A district meets its obligation to provide a free appropriate public education (FAPE) to a child with a disability in part by providing special education and related services, including program modifications or supports for school personnel that will be provided for the child that are in conformity with a child's IEP. The IEP must include a behavioral plan for a child whose behavior impedes his or her learning or that of others. The IEP for a child also must include a statement of measurable annual goals including benchmarks or short-term objectives. The district must implement the provisions in the IEP including the behavioral support plan and the program modifications or supports for school personnel that will be provided for the child.

Issue #1 deals with the complainants' allegation that the district revised the program modifications and short-term objectives in the student's August 2, 1999, IEP without conducting an IEP team meeting. On October 1, 1999, the parents received at their request a typewritten copy of their son's August 2, 1999, IEP. The October 1, 1999, typewritten copy when compared to the student's August 2, 1999, IEP, reveals that substantive revisions were made to student's IEP dealing with program modifications and short-term objectives outside of the IEP team process. The student's August 2, 1999, IEP was revised without having an IEP team meeting. There is a violation with regard to issue #1.

Issue #2 deals with the allegation that the district improperly identified the student's speech and language impairment as a related service without conducting an IEP team meeting. On August 2, 1999, the student was reevaluated by an IEP team and was determined to be student with the disabilities of autism and speech and language. At the August 2, 1999, IEP team meeting, the parents received a copy of their son's evaluation report. The copy of the evaluation report that the parents received indicates that their son's disability was autism, instead of autism and speech and language, as had been determined by an IEP team. The district acknowledged the error in the report and provided the parents with a corrected copy on October 1, 1999. There is no violation in regard to issue #2.

Issue #3 deals with the allegation that the district failed to implement the student's August 2, 1999, IEP as it relates to the program modifications and behavioral support plan. The district did not implement the program modifications section of the student's IEP dealing with the provision of inservicing staff about autism at the beginning of September. In addition, the district did not implement portions of the student's behavioral support plan. Specifically, the district did not target 5 behaviors for the student to succeed in the mainstream classroom; did not include specific instructions in the student's schedule on issues that are problematic for him; and did not develop a differential reinforcement of other behavior program. There is a violation in regard to issue #3.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district:

  1. conducts IEP meetings to make revisions to the student's IEP and the IEPs of other students dealing with program modifications and short-term objectives; and
  2. implements the provisions of the student's IEP and the IEPs of other students dealing with program modifications and behavioral support plans.

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 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, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
3/10/00
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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