IDEA Complaint Decision 99-062

On December 3, 1999, and January 19, 2000, a complaint was filed with the Department of Public Instruction by XXXXX against the Madison Metropolitan 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, written statements submitted by the district, and documents submitted by the complainant. Department staff spoke by telephone with the complainant, a special education supervisor, and a special education teacher.

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

ISSUE #1:

Did the district fail to attach the entire due process hearing order dated January 13, 1998, to the child's current IEP as agreed upon by the IEP team participants at the June 8, 1999 IEP team meeting?

ISSUE #2:

Did the district fail to implement the following provisions of the child's current individualized education program (IEP): the child is to be evaluated at the beginning of the school year; the parent is to be notified when the child leaves school grounds during the school day; and the parent is to receive copies of the child's textbooks and class assignments?

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.

* * *

(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.

* * *

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 youth whose education is the subject of this investigation is a child with a disability who attends high school in the Madison Metropolitan School District. The complainant filed a due process hearing request with the department against the district on November 13, 1997, with an amendment on December 1, 1997. The parties engaged in mediation and reached an agreement on January 8, 1998. On January 13, 1998, an administrative law judge issued an order implementing the mediation agreement and an order dismissing the due process hearing request. On May 26, 1998, an IEP team, including the complainant, attached the hearing order to the youth's IEP, as well as an additional page of agreed-upon modifications of the order.

On June 8, 1999, the district convened an IEP team meeting to determine the youth's continuing eligibility for special education, develop an IEP and transition statement, and determine placement. The complainant participated in the IEP team meeting. At the meeting, the IEP team developed the youth's current IEP and attached to the IEP the May 26, 1998, page of modifications of the January 13, 1998, hearing order. The IEP does not have the entire hearing order attached.

The complainant alleged that, at the June 8 IEP team meeting, the IEP team agreed to attach the entire hearing order to the IEP, thereby incorporating its requirements into the current IEP. The other two district staff IEP team participants informed the department that the IEP team agreed to attach only the page of modifications to the IEP. The district's legal counsel informed the department that the hearing order is in the youth's education records, and "the district will continue to abide by it and to incorporate it into any future IEP as is appropriate."

The page of hearing order modifications attached and incorporated into the current IEP includes the requirement that the youth's mother "will be provided with texts and curriculum for all academic classes (Language Arts, Math, Social Studies and Science)." The complainant has not received texts and curriculum for her child's academic classes.

The January 1998 hearing order requires that the district "do academic skills testing at the beginning and end of each school year." This requirement is not stated in the youth's current IEP. However, the district has acknowledged that it will continue to follow the hearing order. The current school year began on August 23, 1999. The district's case manager for the youth informed the department that, at a meeting with the complainant on October 19, 1999, he offered to conduct screener-type testing of the youth, but the complainant declined the testing. This offer was made two months after school started. The district did not conduct academic skill testing of the youth at the beginning of the current school year.

The current IEP contains a behavior intervention plan that states consequences for the youth leaving school. It states: "if [the youth] leaves - is okay - does not come back {Mother will be notified if case manager or principal aware - otherwise [the youth] will call mother when arrives at home and mother will alert principal at school." The modifications page attached to the IEP also states: "If [the youth] chooses or staff is made aware in any fashion that [the youth] needs to or wants to leave the building, [the mother] will be personally notified if he leaves school grounds. If she is not personally available to take a phone call, a message will be left that states, `[the youth] has left the school grounds.'" The 10th grade principal informed the department that, during the current school year, he calls the complainant when he is made aware that the youth is not in class or has left the building.

CONCLUSION:

A local educational agency (LEA) must provide a free appropriate public education (FAPE) to each child with a disability. A LEA meets its obligation to provide FAPE, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department.

The child's current IEP does not have the entire January 13, 1998, hearing order attached to it. The district staff IEP team members informed the department that the IEP team agreed to attach only one page of hearing order modifications to the IEP. The complainant alleged that, at an IEP team meeting on June 8, 1999, the IEP team agreed to attach the entire hearing order to the IEP, thereby continuing its requirements for the current school year. In its response to the complaint, the district stated that it continues to abide by the requirements of the hearing order, whether it is attached to the youth's IEP or not. While the district must continue to comply with any controlling hearing order, the law does not require that the order be attached to the IEP. The department is unable to conclude that the IEP team agreed to attach the entire hearing order at the June 8 IEP team meeting. There is no violation with regard to issue #1.

The youth's current IEP requires the district to notify the parent if the youth leaves school grounds and provide the parent with texts and curriculum for the youth's academic classes. The hearing order requires that the district evaluate or test the youth at the beginning of the school year. During the current school year, the district notified the complainant when the youth was known to have left school grounds. The district did not test the youth at the beginning of the school year and did not provide texts and curriculum to the complainant. There is a violation with regard to testing the youth and providing texts to the parent in issue #2.

_______________

DIRECTIVE:

The Madison Metropolitan 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 the complainant with texts and curriculum for her child's academic classes, consistent with the requirements of the youth's IEP;
  2. the district conducts academic skill testing of the youth, consistent with the requirements of the January 13, 1998, hearing order;
  3. district staff are aware of controlling hearing orders and that applicable provisions of hearing orders are properly reflected in the IEP.

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 the department has approved it.

_______________

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
2/28/00
_________________________________________
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