IDEA Complaint Decision 99-065

On December 16, 1999 (letter dated December 13, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Janesville 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, materials submitted by the complainants, and documents submitted by the district in response to the complaint. Department staff spoke by telephone with one of the complainants, an assistant principal, a school psychologist, a special education teacher, the director of pupil services, and the special education coordinator.

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ISSUE #1:

Since May 1999, did the district provide psychological services to the child without a determination by an individualized education program (IEP) team that the child requires psychological services as a related service in her IEP to benefit from special education?

APPLICABLE STATUTES AND RULES:

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:
(a) Evaluate the child under s. 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 s. 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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(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 to do all of the following:
1. Advance appropriately toward the annual goals.
2. Be involved and progress in the general curriculum in accordance with par. (a) and participate in extracurricular and other nonacademic activities.
3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a 17-year-old with a learning disability who attends high school in the Janesville School District.

On February 10, 1999, the district held an IEP team meeting to conduct an annual review of the youth's IEP. The parents and the youth participated in the meeting. The IEP team determined that the youth would fully participate in regular education classes and the general curriculum, would receive supplemental aids and services in the form of modifications in class, and would receive assistive technology as a related service.

One of the objectives in the IEP states that the youth will "seek support help from an adult when she feels her stress level is escalating." The IEP team discussed that the adult might be the school psychologist or either of the learning disabilities teachers, all of whom were IEP team participants. Consistent with this objective, the youth did request meetings with the school psychologist. From May through December 1999, the youth met with the school psychologist intermittently -- from once a month to twice a week. When the youth asked to meet with the school psychologist, the psychologist would grant her a pass to leave class to meet with her. This is the normal procedure the school psychologist follows for all students who request meetings. The school psychologist did not initiate the meetings or schedule regular meetings with the youth.

CONCLUSION:

A local educational agency (LEA) must appoint an IEP team to determine the related services that are required to assist a child with a disability to benefit from special education, and the LEA must provide the child with those related services, consistent with the IEP. In this case, the youth's IEP team did not determine that the youth required psychological services to benefit from special education. The IEP team discussed that the youth could seek out three possible adults, not just the school psychologist, if she feels stressed, including two learning disabilities teachers. When the youth did request meetings with the school psychologist, the school psychologist followed the same procedure used for all students who request meetings. The youth's meetings with the school psychologist from May through December 1999 did not constitute psychological services as a related service. There is no violation with regard to issue #1.

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ISSUE #2:

the district fail to investigate the child's status and take appropriate action to provide the child a free appropriate public education following repeated absences from school beginning in May 1999?

ISSUE #3:

the district fail to conduct an IEP team meeting from May to December 1999 to consider positive behavioral interventions, strategies, and supports to address the child's behavior that impedes student learning?

ISSUE #4:

the district fail to ensure that an IEP team determined the child's special education placement in November or December 1999?

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

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program.

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Section 115.792, Wisconsin Statutes
Procedural safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.

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Section 118.15, Wisconsin Statutes
Compulsory school attendance.

(1)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

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Section 118.16, Wisconsin Statutes
School attendance enforcement.

(1) In this section:
(a) "Habitual truant" means a pupil who is absent from school without an acceptable excuse under sub. (4) and s. 118.15 for part or all of 5 or more days on which school is held during a school semester.

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(c) "Truancy" means any absence or part or all of one or more days from school during which the school attendance officer, principal, or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of s. 118.15.
(2) The school attendance officer:
(a) Shall determine daily which pupils enrolled in the school district are absent from school and whether that absence is excused under s. 118.15.

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(c) Except as provided under pars. (cg) and (cr), shall notify the parent or guardian of a child who has been truant of the child's truancy and direct the parent or guardian to return the child to school no later than the next day on which school is in session or to provide an excuse under s. 118.15. The notice under this paragraph shall be given before the end of the 2nd school day after receiving a report of an unexcused absence. The notice may be made by personal contact, mail or telephone call of which a written record is kept, except that notice by personal contact or telephone call shall be attempted before notice by mail may be given.
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant.

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(cr) After the notice required under par. (cg) has been given, shall notify the parent or guardian of a habitual truant of the habitual truant's unexcused absences as provided in the plan under s. 118.162 (4) (a). After the notice required under par. (cg) has been given, par. (c) does not apply.

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(5) Except as provided in sub. (5m), before any proceeding may be brought against a child under s. 938.13 (6) for habitual truancy or under s. 938.125 (2) or 938.17 (2) for a violation of an ordinance enacted under s. 118.163 (2) or against the child's parent or guardian under s. 118.15 for failure to cause the child to attend school regularly, the school attendance officer shall provide evidence that appropriate school personnel in the school or school district in which the child is enrolled have, within the school year during which the truancy occurred, done all of the following:
(a) Met with the child's parent or guardian to discuss the child's truancy or attempted to meet with the child's parent or guardian and received no response or were refused.
(b) Provided an opportunity for educational counseling to the child to determine whether a change in the child's curriculum would resolve the child's truancy and have considered curriculum modification under s. 118.15 (1) (d).
(c) Evaluate the child to determine whether learning problems may be a cause of the child's truancy and, if so, have taken steps to overcome the learning problems, except that the child need not be evaluated if tests administered to the child within the previous year indicate that the child is performing at his or her grade level.
(d) Conducted an evaluation to determine whether social problems may be a cause of the child's truancy and, if so, have taken appropriate action or made appropriate referrals.

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Section 118.162, Wisconsin Statutes
Truancy committee and plan.

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(4) Not later than September 1, 1989, each school board shall adopt a truancy plan which shall include all of the following:
(a) Procedures to be followed for notifying the parents or guardians of the unexcused absences of habitual truants under s. 118.6(2)(cr) and for meeting and conferring with such parents or guardians.
(b) Plans and procedures for identifying truant children of all ages and returning them to school, including the identity of school personnel to whom a truant child shall be returned.
(c) Methods to increase and maintain public awareness of and involvement in responding to truancy within the school district.
(d) The immediate response to be made by school personnel when a truant child is returned to school.
(e) The types of truancy cases to be referred to the district attorney for the filing of information under s. 938.24 or prosecution unders.118.15(5) and the time periods within which the district attorney will respond to and take action on the referrals.
(f) Plans and procedures to coordinate the responses to the problems of habitual truants, as defined under s. 118.16(1)(a), with public and private social services agencies.
(g) Methods to involve the truant child's parent or guardian in dealing with and solving the child's truancy problem.

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34 CFR 300.342 When IEPs must be in effect.

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(b) Implementation of IEPs. Each public agency shall ensure that--

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(2) The child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation; and
(3) Each teacher and provider described in paragraph (b)(2) of this section is informed of--
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Appendix A, Question 20

20. How frequently must a public agency conduct meetings to review, and, if appropriate, revise the IEP for each child with a disability?

A public agency must initiate and conduct meetings periodically, but at least once every twelve months, to review each child's IEP, in order to determine whether the annual goals for the child are being achieved, and to revise the IEP, as appropriate, to address: (a) Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate; (b) the results of any reevaluation; (c) information about the child provided to, or by, the parents; (d) the child's anticipated needs; or (e) other matters (s. 300.343(c)).

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Department of Public Instruction, IDEA Complaint Decision 99-005, 4/23/99

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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. The district may modify the child's educational program or placement.

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FINDINGS OF FACT:

Beginning on May 10, 1999, the youth was truant for all or part of ten school days, until the school year ended on June 3, 1999. On May 11, 1999, the district informed the youth's parents in writing that she had used the five-day limit for parental excused absences for the semester. The district placed telephone calls to the parents regarding the youth's unexcused absences via an automated recorded message system. When the attendance office staff enters an unexcused absence into the computer, the automated system places telephone calls each evening informing parents of an unexcused absence. On May 17, 1999, an assistant principal spoke to the youth's father by telephone. They agreed that three days of restricted lunch was the most appropriate disciplinary measure for the youth to address her truancy. Because the youth is already involved in the juvenile court system and has a probation officer that regularly monitors her school attendance, the district did not refer her to the district attorney for truancy proceedings.

During the current school year, the youth was truant for 14 consecutive school days from September 1 through September 21, 1999. The youth was truant because she had run away from home. The district informed the parents of the youth's unexcused absences via its automated telephone recording system until the parents requested that the calls stop, since they were receiving them every night and they knew their daughter was truant because she was a runaway.

On September 20, the assistant principal sent the parents a certified letter asking them to attend a truancy conference regarding their daughter on September 28, 1999. The letter contained the information required by the district's truancy policy. The complainants did not attend the truancy conference. On September 23, 1999, the assistant principal sent the youth's parents a letter informing them that their daughter had used the ten-day limit for parental excused absences for the school year. The district did not refer the youth to the district attorney for truancy proceedings because she already has a probation officer who regularly monitors her school attendance. The district's actions with regard to the youth's truancy were consistent with its attendance/truancy policy.

On September 23, 1999, the youth's father informed the district his daughter had been placed in the Rock County juvenile detention center. The youth remained in the detention center full-time until October 8, 1999. The district informed the district staff teacher who works at the juvenile detention center that the youth was a student with a learning disability that attended regular education classes in the general curriculum with some modifications. The district sent the youth's class assignments and homework over to the juvenile detention center while she was there. The student's IEP was accessible to the juvenile detention center teacher. On October 11, 1999, the student returned to school part-time and was in the detention center part-time. On November 2, 1999, she returned to school full-time and was truant only three hours from then until the time the complaint was filed.

On November 10, 1999, the youth's IEP case manager and two other staff members met to discuss how to ensure that the youth be provided the opportunity to make up any tests and class assignments she may have missed while in the juvenile detention center. The district did not send the parents prior written notice of the meeting. As a result of the meeting, an addendum was attached to the youth's IEP. It states:

On October 11th [the youth's] schedule was changed to a half day to accommodate an alternative afternoon schedule in an out of school (sic) setting. This lasted for a two week period of time and [the youth] returned to a full day schedule at Craig High School; (sic) on October 29, 1999.

The complainants alleged in their complaint that this addendum constitutes an improper change of placement because they did not receive notice of the proposed change and were not invited to an IEP team meeting to participate in a placement determination. On November 12, 1999, the IEP case manager telephoned the parents and left a message on their answering machine regarding the November 10 meeting. On December 3, 1999, an IEP team meeting was held to conduct additional transition planning for the youth. The youth's parents received notice of the meeting and attended the meeting. At the meeting, the parents first saw the November 3 addendum that had been attached to their daughter's IEP.

The district did not hold an IEP team meeting between May and December 1999. After filing this IDEA complaint, the parents requested that an IEP team meeting be held to consider behavioral interventions and strategies to address any behaviors of the youth that impede student learning. As a result, an IEP team meeting was held on January 11, 2000; the IEP team considered behavioral interventions and strategies to address any behaviors that impeded student learning; and the youth's IEP was revised.

CONCLUSION:

A LEA meets its obligation to provide a free and appropriate public education (FAPE) to a child with a disability, in part, by providing special education and related services. When a child with a disability has a significant number of absences, a LEA has a duty to investigate the child's status and take appropriate action to provide the child FAPE. The LEA, through the IEP team process, may modify the child's educational program or placement, if appropriate. When a LEA proposes to change the child's educational program or placement, the LEA must send the child's parents a notice of its proposal a reasonable amount of time before implementing the change.

Here, the Janesville School District took actions with regard to the youth's truancy in May and September 1999 that complied with the requirements of its attendance/truancy policy. The district did not refer the youth to the district attorney for truancy proceedings because the youth was already involved in the juvenile court system and had a probation officer that regularly monitored her school attendance.

The youth was in the juvenile detention facility full-time for two and one-half weeks and part-time for three more weeks. District staff informed the department that this is a much longer stay than normal and that children typically are in the juvenile detention facility for only a few days. In this case, the youth's extended stay in the detention facility resulted in a change of educational placement. The district should have convened an IEP team meeting to consider the resultant change in educational placement or to review and revise, if appropriate, her IEP to ensure that she received FAPE. At the IEP team meeting, the IEP team would have had to consider whether the youth exhibited behavior that impeded student learning and, if so, consider strategies, positive behavior interventions, and supports to address the behavior. The department concludes that one violation occurred relating to issues #2, #3, and #4.

The district convened an IEP team meeting at the parent's request on January 11, 2000. The IEP team considered behavioral interventions and strategies to address the youth's behaviors that impeded student learning and revised the IEP. Because the district has already taken this corrective action, the department will not order child-specific corrective action.

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DIRECTIVE:

The Janesville School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that, if the educational placement of a child with a disability is changed as the result of an extended stay in a juvenile detention facility, the district convenes a proper IEP team meeting to ensure that the child is provided FAPE while in detention.

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

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

signed JSP
2/14/00
_________________________________________
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