IDEA Complaint Decision 99-063

On December 8, 1999 (letter dated December 8, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against 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 documents and relevant education records submitted by the district as well as documents submitted by the complainant. Department staff interviewed two district assistant principals, a principal, school social worker, school psychologist, director of the division of bi-lingual/multi-cultural education, and a Lau compliance tester.

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ISSUE:

Did the district, between January 1999 and December 8, 1999, fail to identify, evaluate, and make available a free appropriate public education to the child whose education is the subject of this complaint?

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:
(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age.

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Section 115.777, Wisconsin Statutes
Special education referrals.

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(1) (b) A person who is required to be licensed under 115.28 (7), who is employed by a local educational agency and who reasonably believes a child has a disability, shall refer the child to the local educational agency.

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(2) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.

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

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(1m) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777.

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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.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under 115.777 or initiates a reevaluation of the child under 115.782 (4).

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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:

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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 * * *

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Wisconsin Administrative Code
11.07 Transfer pupils.

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(2) TRANSFER PUPILS FROM OUTSIDE WISCONSIN. When a board receives a transfer pupil from outside Wisconsin who was receiving special education in the sending state, the board shall treat the child as a new pupil. The board shall conduct an M-team evaluation and develop an IEP and placement offer for the child * * * within 90 days after the child enrolls in the receiving board's school.

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34 CFR 300.19 Native language.

(a) As used in this part, the term native language, if used with reference to an individual of limited English proficiency, means the following:
(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section.

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34 CFR 300.503 Prior notice by the public agency; content of notice.

(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency--
(i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child * * *

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(c) Notice in understandable language. (1) The notice required under paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(2) If the native language or other mode of communication of the parent is not a written language, the public agency shall take steps to ensure--
(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in paragraphs (c)(2) (i) and (ii) of this section have been met.

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FINDINGS OF FACT:

In January 1999, the child whose education is the subject of this complaint was 12 years old and had recently moved to Milwaukee from New York City. The primary language spoken by the child and his mother is Spanish. The family is bilingual with both English and Spanish spoken in the home environment. The child's mother is unable to read in either Spanish or English.

In early 1999, the mother enrolled her son in the Milwaukee Public Schools (MPS) at the central services office. The child's student assignment form is signed by a district reviewer and dated February 9, 1999. The child's mother also signed the form. The box on the form which indicates that the child needs a bilingual/English-as-a-second-language program is checked. The box for special education programming is not checked on the student assignment form. A district staff member responsible for assisting parents who speak languages other than English verbally informed the parent to inform the child's middle school principal if the child was in need of special education services and to request that the child be evaluated for special education. The parent also was provided a Spanish "Parent and Student Handbook of Student Rights and Responsibilities," which included a statement that parents should inform the principal of the child's school if the child was in need of special education services.

On February 26, 1999, the child's mother enrolled the child at the assigned district middle school. The student information card for the middle school has a line for special education programming information. This line is marked "ED" for emotional disturbance. The child's mother informed the district that her child had a need for special education. On February 26, 1999, the district requested by telephone the child's records from the New York City Public Schools. On March 2, 1999, the district requested the child's records with a letter from the school principal.

On March 15, 1999, the district received the child's records from the New York City Public Schools. The assistant principal reviewed the child's records and completed a written referral for a special education evaluation of the child. On March 16, 1999, a school psychologist sent to the child's mother a letter with a special education referral and initial evaluation notice and consent to evaluate the child for special education eligibility. The letter and form were written in English. The child's mother did not return the consent form. The district did not follow-up with verbal communication to the parent to determine if the parent received or understood the letter and consent form. On April 15, 1999, the child's mother removed her son from the school as a result of an incident on the school bus which she believed endangered her son. District staff did not attempt to contact the parent following her removal of her son from school to complete his evaluation. Between February 26, 1999, and April 15, 1999, the student was present at school 12 of 27 days. Between April 15, 1999, and the end of the 1998-1999 school year the child did not attend school. The district did not complete a special education evaluation during the 1998-99 school year.

On September 1, 1999, the child re-enrolled through the Division of Parent and Student Services and was assigned to a different middle school. The box for special education programming is not checked on the student assignment form. On September 2, 1999, the child's mother completed a referral for a special education evaluation and provided the district written consent to evaluate the child. It is noted on the September 2, 1999, referral form that Spanish is the primary mode of communication for the child and his mother. On November 2, 1999, the district requested an extension of the 90-day timeline until January 15, 2000, which the parent granted. The district provided the mother with a notice and consent to evaluate and a request for an extension of timeline written in Spanish. The school's bilingual guidance counselor verbally explained in Spanish the notices and consent to the child's mother. On December 7, 1999, at an IEP team meeting, the bilingual IEP team determined that the child is a child with a disability; developed an IEP for the child; and determined a special education placement for the child. The child and the child's mother attended the IEP team meeting with a parent advocate. The child's mother gave the district written consent for placement of her child to begin on December 8, 1999. On December 8, 1999, the district began delivery of special education services in conformity with the child's IEP.

CONCLUSION:

A school district has a responsibility to identify, evaluate, and make available a free appropriate public education to all children with disabilities who are residents of the school district and who have not graduated from high school. The district is responsible for identifying children for whom there is reasonable cause to believe that the child is a child with a disability. When a district learns that a newly enrolled child was receiving special education from another state, the district must conduct an initial evaluation of the child. The district must conduct an IEP team meeting to determine eligibility for special education, develop an IEP and determine a placement offer for the child within 90 days after the child enrolls in the school district. The district must provide required notices to the parent in the parent's native language. In order to provide the child with a free appropriate public education (FAPE), a district must provide a child with special education and related services in conformity with an IEP. When a district enrolls a child whom it knows was receiving special education services in another state, the district must develop an IEP and send a placement notice for the child within 90 days of the child's enrollment. The 90-day period may be extended with the written permission of the parent or by the department.

The district verbally and in writing informed the parent in Spanish of her right to make a referral for special education services and that she could do so by informing the principal of her son's school. The mother's primary language is Spanish. The mother is unable to read either Spanish or English. On February 26, 1999, the child's mother enrolled the child at the assigned district middle school and informed the district that her child had been receiving special education services. On March 15, 1999, the district completed a written referral for a special education evaluation of the child. On March 16, 1999, a school psychologist sent a letter to the mother with a special education referral and initial evaluation notice and consent to evaluate the child for special education eligibility. The letter and form were in English. The child's mother did not return the consent form. The district did not follow-up with verbal communication to the parent to determine if the parent received or understood the letter and consent form. In this regard, there is a violation relating to this issue.

The district did not conduct an IEP team meeting to determine eligibility for special education, develop an IEP, and determine a placement offer for the child within 90 days after the child enrolled in the school district. The complaint is substantiated in regard to the district's failure to act to complete an evaluation of the child between February 26, 1999, and September 1, 1999.

During the 1999-2000 school year when the child reenrolled, the district conducted an IEP team meeting to determine eligibility for special education, develop an IEP and determine a placement offer for the child within the timeline extension agreed to in writing by the parent. The district provided required notices to the parent in the native language of the child's parent; and because the parent is unable to read in English or Spanish the district verbally explained the notices. The complaint is not substantiated in regard to the district's actions between September 1, 1999, and December 8, 1999.

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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 when the district receives a child who was receiving special education service from another state the district must conduct an IEP team meeting to determine eligibility for special education, develop an IEP, and determine a placement offer for the child within 90 days after the child enrolls in the school district. The district must provide required notices to the parent in the native language of the child's parent; and for a parent with no written language in the mode of communication that is normally used by the parent such as oral communication.

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

signed JSP
3/7/00
___________________________________________
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