IDEA Complaint Decision 09-064

On December 16, 1999 (letter dated November 26, 1999, letter dated December 2, 1999, facsimile transmission dated December 16, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Crivitz 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 §§ 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 portions of the child's educational records, information provided by the complainants and school district, and written statements provided by the complainants and school district. In addition, department staff spoke with the following people by telephone: the mother, the father, the director of special education, the principal, the school attendance officer, the office secretary, the emotional disturbance (ED) teacher, the case manager, the guidance counselor, and the science teacher.

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ISSUE #1:

Did the district fail to provide services consistent with the child's IEP during the 1999-2000 school year that required weekly communication with parents, "access to science activities beyond the regular classroom," and that the child would "read at least 4 books, selected together with his teacher, per semester?"

ISSUE #2:

Did the district fail to provide services consistent with the child's IEP during the 1997-98, 1998-99, and 1999-2000 school years related to counseling?

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 115.78, 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.

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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 115.787, 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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(h) A statement of all of the following:
1. How the child's progress toward the annual goals described in par. (b) will be measured.
2. How the child's parents will be regularly informed, at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the effective period of the individualized education program.

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34 CFR 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 * * *.

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(c) Review and revision of IEPs. Each public agency shall ensure that the IEP team--
(1) Reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and
(2) Revises the IEP as appropriate to address--

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(h) Any lack of expected progress toward the annual goals described in sec. 300.347(a), and in the general curriculum if appropriate * * *.

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34 CFR 300.350 IEP--accountability.

(a) Provision of services. Subject to paragraph (b) of this section, each public agency must--
(1) Provide special education and related services to a child with a disability in accordance with the child's IEP; and
(2) Make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP.
(b) Accountability. Part B of the Act does not require that any agency, teacher, or other person be held accountable if a child does not achieve the growth projected in the annual goals and benchmarks or objectives.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 10 and 31

10. Does Part B require that public agencies inform parents regarding the educational progress of their children with disabilities?

Yes. * * * Section 300.347 (a)(7) * * * requires that the IEP include: A statement of--(i) How the child's progress toward the annual goals * * * will be measured; and (ii) how the child's parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of--(A) their child's progress toward the annual goals; and (B) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

One method that public agencies could use in meeting this requirement would be to provide periodic report cards to the parents of students with disabilities that include both (1) the grading information provided for all children in the agency at the same intervals; and (2) the specific information required by §300.347(a)(7)(ii)(A) and (B).

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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. * * *

34 CFR Part 300, Attachment 1 — Analysis of Comments and Changes (64 FR 12581)

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It should be noted, however, that as a general matter, when a child is not making meaningful progress toward attaining goals and standards applicable to all children, it would be appropriate to reconvene the IEP team to review the progress.

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Department of Public Instruction, IDEA Complaint Decision 99-005 (April 23, 1999)

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When a child with a disability has a significant number of absences, a district has a duty to take action timely to provide the child FAPE.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Crivitz School District. He receives special education and related services because an IEP team determined he needed such services as a result of an emotional disturbance (ED) impairment. During the 1997-98, 1998-99, and 1999-2000 school years, the child attended his home school in the Crivitz School District.

From September 7, 1999 (the first day of school) through December 15, 1999, the child was absent for all or part of the day on 38 days. The child's absences were due, in large part, to the challenges associated with adjusting the child's medication. He took medicine to control behaviors and emotions associated with several medical diagnoses. During the fall semester, the medical doctor was adjusting the child's medications on a frequent — at some points, weekly — basis. As a result, the child was often exhausted from the chemical changes in his body, in addition to behaving erratically in response to the medication. The parents communicated with district staff regarding the medical changes on a regular basis.

At the time of the investigation, the child's behaviors indicate that the current dose of medication works to calm him to a point where he can participate in school activities. The child participates in academic and nonacademic activities.

Weekly communication, access to science activities, and reading

Communication

During the 1999-2000 school year, the district was required to communicate with the parents in a variety of different ways. However, neither the original IEP for the school year (developed on September 2, 1999) nor subsequent revisions (October 1, 1999; October 8, 1999; and November 1, 1999) required weekly communication.

The IEP developed on September 2, 1999, noted that "parents are concerned that teachers maintain communication with them" (Form I-11, Student strengths, parent concerns, and present level of educational performance). One measurable annual goal for the child was that he "will increase his social interaction with peers within the classroom, and in non-structured settings, to have fewer than two incidents per semester" (Form I-12, which identifies measurable annual goals). The relevant procedures for informing the child's parents of his progress toward this goal and the extent to which that progress is sufficient to enable the student to achieve the goal by the end of the year were telephone conferences and parent-teacher conferences. This particular annual goal remained in effect from the beginning of the school year (September 7, 1999) until October 10, 1999.

One way the district informed the parents of his progress toward the social skills goal was telephone conferences. Teachers frequently called the parents during this time period to report on the child's behaviors and social skills.

Another way the district informed the parents of his progress toward the social skills goal were IEP team meetings. The child's absences affected his ability to work toward his social interaction skills. The frequent medical changes and the child's behaviors also impeded the child's work on his social skills. In response to these factors, the district convened two IEP team meetings between September 7, 1999, and October 10, 1999. The IEP team revised the IEP at each meeting, in part, because they felt the child was not making progress sufficient to meet the annual goals.

On October 8, 1999, the district convened an IEP team meeting to review and revise, if necessary, the child's IEP. The revised IEP required parental communication as a procedure for informing them of the student's progress toward three annual goals (Form I-12). These goals and the means of reporting on them were in effect from October 11, 1999, through the time of this investigation.

First, the IEP requires the district to communicate with the parents regarding the child's reading and written language skills. The goal reads, "[The child] will demonstrate reading and written language skills equivalent to or above his current grade placement." The procedures for informing parents of the student's progress toward the annual goal and the extent to which that progress is sufficient to enable the student to achieve the goal by the end of the year are quarterly progress reports, phone calls/notes home, and parent-teacher conferences. The district acknowledges that staff did not provide quarterly reports.

Second, the IEP requires the district to communicate with the parents regarding the child's study skills. The goal reads, "[The child] will demonstrate appropriate study skills needed to work independently in the classroom." Third, the IEP requires the district to communicate with the parents regarding the child's social skills. The goal reads, "[The child] will demonstrate more appropriate peer interactions within structured and unstructured settings."

The procedures for informing the parents of the student's progress toward the annual study skills and social skills goals and the extent to which the progress is sufficient to enable the student to achieve the goals by the end of the year are "phone calls home," "notes home," and "parent/teacher conferences."

The district communicated to the parents on the child's progress toward these goals via telephone calls and notes home. Teachers frequently called the parents and the ED teacher sent notes home to the parents on an almost daily basis.

In addition, the district convened another IEP team meeting on November 1, 1999, to address the lack of expected progress. The IEP team again revised the child's IEP to include additional behavioral supports for his social skills and study skills goals.

Specifically, the parents state that district staff did not complete the required behavior reports. One provision of the IEP developed on September 2, 1999, required the district to measure the student's progress toward the social interaction goal via "use of behavior checklists completed by classroom teachers to measure [the child's] behavior" (Form I-12). While the IEP indicated these checklists would be used "twice monthly," this provision remained in effect only until October 1, 1999.

During this time period, the case manager twice distributed a behavior monitoring system/checklist called ACTeRS to the regular education teachers. Regular education teachers rated the child's behavior on these forms and returned them to the case manager, by the dates due.

Access to science activities

During the October 8, 1999, IEP team meeting, the IEP team also revised the IEP to require "access to science activities beyond the regular education classroom, with supervision from science teacher" (Form I-10, Special Factors; included under the "positive behavioral interventions, strategies, and supports" to address the student's behavior). The understanding among the members of the team was that the child needed to exhibit basic science proficiency before accessing these enrichment activities.

The IEP team included this provision in the revised IEP because the child has a strong interest in science, and the parents believe the child is gifted in this area and should have access to these enrichment activities. The IEP team agreed that this provision would be an appropriate positive behavioral support.

During the first quarter, the child was absent for 18 regular education science classes, or 41% of the time. During the second quarter, he was absent for 61% of the class time. On several occasions, the teacher offered to let the child make up quizzes orally, instead of taking the written quizzes. She also sent notes home to the parents regarding the missed assignments. Because of his frequent absences, the child did not acquire the basic science proficiency needed to access the enrichment activities. As a result, the child did not participate in science enrichment activities.

The district did, however, provide science activities beyond the regular education classroom through a computer software program. On October 5, 1999, the director of special education visited the family's home and installed PLATO, a science instruction software program, onto their computer. The director also demonstrated how to use the program.

Reading

The IEP team revised the IEP on October 8, 1999, to also include a measurable annual goal that reads, "[The child] will demonstrate reading and written language skills equivalent to or above his current grade placement." A benchmark or short-term objective toward that goal reads, "[The child] will read at least four books, selected together with his teacher, per semester." During the first semester of the 1999-2000 school year, despite the child's absences, the ED teacher worked with the child to select three books. The child read part or all of the three books.

Counseling services

The child's IEPs for the 1997-98 and 1998-99 school years did not identify counseling services as necessary to the provision of FAPE.

The IEP developed on September 2, 1999, identified counseling services as a related service needed for the child to benefit from special education (Form I-14). From the beginning of the school year, the counselor was available for the child when he needed her services.

At the October 1, 1999, IEP team meeting, the IEP team revised the IEP. One revision was to add to the Special Factors (I-10) form, "[The child] has a 'safe space' to take time out when feeling overwhelmed/under pressure[:]…Counselor's office…Counselor-guidance or school psychologist for [the child] to touch base/talk with…." The child regularly used the counselor's office to cool down. When he came to the office, the school counselor would check in with him to determine whether he needed to talk. If so, the counselor held an impromptu counseling session with the child.

The child's behavior continued to concern the district and the parents; the district convened another IEP team meeting on October 8, 1999. The IEP team again revised the IEP. The revisions included a new related service: counseling twice weekly, for fifteen minutes per session (form I-14). The IEP team envisioned this to be a structured "check-in" time. This provisions remained in effect through the time period covered by this investigation.

After this related service was written in the IEP, the child would check in with the counselor two mornings a week. Sometimes they would talk about counseling issues and sometimes the child would talk about his interests. The counselor worked on social skills and anger management with the child, and she provided many "what if" situations to prepare him for different things that might come up in a day.

After some time, the child chose not to attend counseling sessions. However, the child continued to use the counselor's office as a "safe space" and the counselor used this time with the child in the same way she used the structured check-in times. Until mid-December, the child was in the office almost daily. The counselor spent well over thirty minutes per week with the child.

CONCLUSION:

Clearly, the fall semester of the 1999-2000 school year was a difficult time for the student, the parents, and the district staff. The department commends the parents and the district staff for their communication and tenacity in working to meet the needs of the child. The medical considerations made this time period a particularly trying time for all involved.

Weekly communication, access to science activities, and reading

Communication

A LEA is required to notify parents of a child with a disability of their child's progress toward annual goals and the extent to which that progress is sufficient to enable the student to achieve the goal by the end of the year. The notification must be at least as often as parents are informed of their nondisabled children's progress. Generally, reports to parents are not expected to be lengthy or burdensome. The statement of the annual goals and short term objectives or benchmarks in the child's current IEP could serve as the base document for briefly describing the child's progress. If the LEA identifies phone calls or conferences as the procedures by which it will notify parents, these phone calls or conferences must describe the child's progress toward annual goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the year.

When a child is not making meaningful progress toward attaining goals and standards applicable to all children, it would be appropriate to reconvene the IEP team to review the progress. The IEP team must revise the IEP, as appropriate, to address any lack of expected progress toward the annual goals.

Here, the department commends district staff for their communication with the parents. On a weekly — and, often, daily — basis, the staff spoke with the parents by phone or in person, or sent notes home. In addition, the district convened four IEP team meetings within two months to revise the child's IEP to address the lack of expected progress toward his annual goals.

The district acknowledged that it failed to provide the required quarterly reports concerning the child's progress toward the reading and written language skills goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the year. There is a violation in this regard to issue #1.

The IEP required classroom teachers to report twice on the child's behavior during the time period of September 7, 1999, through October 1, 1999. Classroom teachers completed behavior checklists twice during this period. There is no violation in this regard to issue #1.

Access to science activities

A LEA must provide each child with a disability a free appropriate public education (FAPE). A LEA meets its obligation to provide a 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 modifications and supports for a child whose behavior impedes his or her learning or the learning of others.

Here, the IEP requires that the district provide the child access to science activities beyond the regular science classroom with the supervision of the science teacher. The IEP team members understood this to be an enrichment of, not a substitute for, the regular science class. The child needed the basic understanding of science skills offered in the regular education science class in order to access the science enrichment activities. Due to absences from the regular education science class, the child did not obtain the requisite skills with which to access the enrichment activities. There is no violation in this regard to issue #1.

Reading

A LEA must provide each child with a disability a FAPE. A LEA meets its obligation to provide a FAPE to a child in part by providing special education and related services in conformity with a proper IEP. However, the IEP is not a performance contract and does not constitute a guarantee by the LEA and the teacher that a child will progress at a specified rate. Despite this, LEAs and teachers have continuing obligations to make good faith efforts to assist the child in achieving the goals and objectives or benchmarks listed in the IEP.

Here, a benchmark by which to judge the child's progress toward his reading and written language goal was the selection and reading of four books per semester. In spite of the child's extensive absences from school, the ED teacher selected three books with the child, which he read in part or in total. Her flexibility in the selection of books, coupled with her commitment to helping the child achieve this goal, demonstrates the requisite good faith effort under these circumstances. There is no violation in this regard to issue #1.

Counseling services

A LEA must provide each child with a disability a FAPE. A LEA meets its obligation to provide a 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.

Here, the district was not required to provide counseling services during the 1997-98 and 1998-99 school years. For the 1999-2000 school year, the revisions in the child's IEP required increasingly structured support through counseling services. At each level of support, the district provided the required counseling services. There is no violation in this regard to issue #2.

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ISSUE #3:

the district fail to consider the parents' concerns regarding a behavior modification program during IEP team meetings convened in the fall of 1999?

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 sec.115.787.

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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.
(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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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:

* * *

(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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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 the opportunity to participate * * *.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Question 5

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 * * *.

FINDINGS OF FACT:

During the fall semester of the 1999-2000 school year, the district convened four IEP team meetings. Because the child's behavior was erratic and because the medication prescribed to control the child's behavior was changed so frequently, much of the focus of all four meetings was on behavioral supports and strategies. Each meeting resulted in revisions to the child's IEP that addressed the child's changing behavior needs.

The mother attended every IEP team meeting. The father attended three IEP team meetings. They often brought materials to the IEP team meetings, including information obtained from the internet and other sources. They often shared information regarding the child's medication changes, and reported on visits with the doctors. The parents participated in discussions about the child's need for special education and related services and supplementary aids and services, particularly services designed to meet the child's behavior needs. The parents joined with the other participants in deciding what services the agency provided to the child and in what setting.

Specifically, the parents state in their complaint that they filled out a worksheet regarding their concerns and recommendations for a behavior modification plan. They state that the form was "promptly buried and ignored" during the November 1, 1999, IEP team meeting. District staff in attendance at the IEP team meeting do not remember a form provided by the parents.

The cover sheet for the IEP team meeting held on November 1, 1999, identifies the purpose of the IEP team meeting as "review and refine modifications and behavioral interventions."

At the meeting, the team — including the parents — discussed the child's behavior and ways the district should address the behavior. The team revised the IEP to include a reevaluation of the child. In recognition that the child's behavior indicated that he needed increased structure to help him deal with stress, the team revised the IEP to also include "scheduled use of these safe zones to decompress between stresses." Another revision provides, as a program modification or support for school personnel, an autism consultation. The parents participated in the discussions that led to these revisions, and the IEP team considered the parents' concerns. District staff in attendance at the IEP team meeting remember that the parents agreed with the revisions to the child's IEP.

CONCLUSION:

A LEA has a responsibility to provide a FAPE to each child with a disability. The LEA must develop and implement an IEP that specifies the special education and related services to be provided to meet a child's needs. A LEA must periodically review and, as necessary, revise a child's IEP. As part of its responsibilities, the IEP team which develops the child's educational program must, in the case of a child whose behavior impedes his or her learning or that of others consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.

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 in 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.

Here, the parents participated in all four IEP team meetings held during the fall semester of the 1999-2000 school year. The IEP team considered the parents' concerns and the information that they provided regarding their child in developing, reviewing, and revising the child's IEP. At all four IEP team meetings the IEP team focused on the child's behavior and the resulting IEP did include strategies and supports to address the behavior. The department is unable to determine whether the parents provided a form to the team regarding behavior modification strategies on November 1, 1999, but the department is able to determine that the district did consider information and concerns presented by the parents during this meeting. The complaint is not substantiated with respect to issue #3.

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ISSUE #4:

the district fail, after September 1, 1999, to provide a free and appropriate public education when it required the parents to transport the child at the parents' expense?

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.

* * *

(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…

* * *

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 §115.787.

* * *

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:

* * *

(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 * * *.

* * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Question 33

Must a public agency include transportation in a child's IEP as a related service?

As with other related services, a public agency must provide transportation as a related service if it is required to assist the disabled child to benefit from special education. * * *

* * * In making this determination, the IEP team must consider how the child's disability affects the child's need for transportation, including determining whether the child's disability prevents the child from using the same transportation provided to nondisabled children, or from getting to school in the same manner as nondisabled children.

The public agency must ensure that any transportation service included in a child's IEP as a related service is provided at public expense and at no cost to the parents, and that the child's IEP describes the transportation arrangement.

Department of Public Instruction IDEA Complaint 96-40 (December 23, 1996)

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A school district is required to provide each child with [a disability] a free appropriate public education (FAPE). In order to provide a FAPE, a district must, in part, provide special education and related services, including transportation, in conformity with a proper IEP. The IEP must contain a statement of the specific special education and related services to be provided to the child, including the amount of each of the services. The statement must be clear to all who are involved in the development and the implementation of the IEP. While the child's current IEP identifies a need for special transportation, it fails to identify transportation as a related service and does not adequately describe the transportation arrangements.

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FINDINGS OF FACT:

The school district provides transportation to nondisabled children. As transportation was not identified as a related service in his IEP, the child rode a bus with his nondisabled peers from the beginning of the 1999-2000 school year. The mother states that the district requested her to transport the child between school and home, sometime around mid-September. District staff state that the mother chose to transport her child. During this time period, the child's IEP did not include transportation as a related service.

On October 1, 1999, an IEP team met to revise the child's IEP. The team decided that the child's day would end after sixth period, which was two periods before the regular school day ended. The IEP team discussed transportation home from school, and the mother volunteered to transport the child home. The IEP did not include details of the transportation arrangement. The mother transported the child to and from school. The district did not reimburse her for any or all of the transportation.

On December 7, 1999, the parents met with the school district superintendent, director of special education, and principal. The parents stated that they wanted special transportation for the child or to be reimbursed. On December 8, 1999, the mother met with the director of transportation, and they decided that individual transportation would begin the next day.

An IEP team did not meet to discuss transportation or to include transportation in the child's IEP.

CONCLUSION:

A LEA has a responsibility to provide a FAPE to each child with a disability. The LEA must develop and implement an IEP that specifies the special education and related services to be provided to meet a child's needs. A LEA must periodically review and, as necessary, revise a child's IEP. As part of its responsibilities, the IEP team which develops the child's educational program must, in the case of a child who needs transportation to benefit from special education, include in the IEP specialized transportation as a related service. The public agency must ensure that any transportation service included in a child's IEP as a related service is provided at public expense.

Here, the department is unable to determine whether the parents voluntarily transported their child between school and home from mid-September until October 1, 1999. The district states that regular transportation was available, and that the parents voluntarily transported the child. The parents state that the district required them to transport the child. The IEP does not identify transportation as a related service. If voluntary, the IEP did not need to reflect the arrangement and the district did not need to reimburse the parents.

On October 1, 1999, the IEP team was required to include transportation as a related service because the child left school two hours before his nondisabled peers and could no longer use the regular transportation. Although the district is currently providing specialized transportation to the child, an IEP team did not determine the need for, or details of, this related service, and the IEP does not describe the transportation arrangements. Beginning October 1, 1999, the district was required to include afternoon transportation of the child in the IEP and provide the transportation at no cost to the parents. There are violations in these regards to issue #4.

The district states that regular transportation continued to be available to the child in the mornings, and that the parents chose to transport the child. The parents state that they continued to be required to transport the child. The department is not able to determine whether the parents voluntarily transported the child in the mornings after October 1, 1999. If the district continued to make available regular transportation for the child in the morning, the IEP did not need to reflect the arrangement and the district did not need to reimburse the parents for morning transportation.

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ISSUE #5:

the district fail to provide a free and appropriate public education when it shortened the child's school day 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.

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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 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(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 §115.787.

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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 * * *.

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(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.

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(3) DEVELOPMENT. (a) In developing each child's individualized education program, the individualized education program team shall consider the strengths of the child, the concerns of the child's parents for enhancing the education of their child and the results of the initial evaluation or most recent reevaluation of the child.
(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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Wisconsin Administrative Code, Section PI 8.01

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and hours of instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,137 hours of direct pupil instruction in grades 7 through 12. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction Individuals with Disabilities Education Act (IDEA) Complaint No. 99-052 (November 15, 1999)

A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a district must take when it changes the provision of special education to a child. State law requires a district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A district may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP and must be based upon the child's individual needs.

FINDINGS OF FACT:

School commenced on September 7, 1999. Between that date and October 1, 1999, the district made available 144 hours of instruction to the child (full-time).

On October 1, 1999, the district convened an IEP team meeting. The parents, case manager, four regular education teachers, the special education teacher, the guidance counselor, the principal, and the director of special education participated in the meeting.

The team discussed the child's behaviors throughout the day. Team members identified band and shop (periods seven and eight) as problematic — in part, because of the unstructured nature of the classes. The team also identified the child's academic work as a priority; the team felt that in order to do well in his academic classes, the child's general stress level needed to be reduced. The team determined that shortening the child's day would meet his individual needs. This determination was noted on the child's IEP (Form I-14).

Given the current IEP, the district has scheduled 1,116 hours of instruction for the child.

CONCLUSION:

A LEA meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a LEA must take when it changes the provision of special education to a child. State law requires a district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A LEA may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP and must be based upon the child's individual needs.

If the IEP continues to require a shortened day for the student, the district would provide 1,116 annual hours of direct instruction for the child, which is fewer than the minimum annual hours of instruction. An IEP team made the decision to shorten the child's day, and the child's parents participated in this decision. The IEP team determined that the shortened school day was required to meet the individual needs of the child. There is no violation with regard to issue #5.

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DIRECTIVE:

The Crivitz 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. regularly informs the parents of this child, and other children with disabilities, pursuant to the provisions of the IEP and at least as often as parents are informed of their nondisabled children's progress, of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year (issue #1);
  2. reimburses the parents for any transportation needed by the child to benefit from his education since October 1, 1999 (issue #4);
  3. convenes an IEP team meeting to include needed transportation as a related service in the child's IEP (issue #4);
  4. ensures that an IEP team determines whether children with disabilities need transportation included in their IEPs as a related service that is necessary for the children to benefit from special education, and that the district provides such services at no cost to the parents (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, §§ 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
3/6/00
______________________________________________
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