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IDEA Complaint Decision 08-091

On November 26, 2008, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools (MPS). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2008-2009 school year, properly provided a free appropriate public education (FAPE) to a student with a disability.

In November the student moved to the district from another Wisconsin local educational agency. The student had an individualized education program (IEP) in effect. On November 10, 2008, the student and his mother met with a district student assignment manager and signed a district “Late Enrollee Coordinator Conference Form” for her child. Following the district’s late enrollee procedures, applied to both regular and special education students, the student was referred to the district charter school selected by the parent and listed on the form, effective November 11. During the week of November 17, the student, with his parent, went to the district charter school to enroll. Because the charter school’s student enrollment was at capacity, the student was not allowed to enroll in the school. Between December 2 and December 8, charter school administration and district central office staff communicated regarding the enrollment of the student. The student’s IEP expired December 3, 2008. On December 10, the student enrolled at, and began attending, the charter school. On January 6, 2009, the district held an IEP team meeting to review and revise the student’s IEP, develop an annual IEP with a transition statement, and determine placement. The student and the student’s mother attended the IEP team meeting.

When a student with a disability transfers to a new public agency in the same state and enrolls in a new school within the same school year, the new public agency, in consultation with the parents, must provide FAPE to the student, including services comparable to those described in the student’s IEP, until the new public agency either: (1) adopts the student’s IEP from the previous public agency; or (2) develops, adopts, and implements a new IEP. In this case, the district did not enroll the student in a timely manner. While the district ultimately developed an annual IEP with a transition statement, and determined placement, between November 17 and December 10, the student was not enrolled in, and did not attend, any school in the district and, consequently, FAPE was not provided.

By February 23, 2009, the district must conduct an IEP team meeting to determine if additional services are needed due to the failure to provide FAPE to the student. By March 2, 2009, the district must provide the department a copy of the student’s IEP documenting the student’s current program, placement, and additional services determination. In addition, the district must review and revise the district late enrollee policies and procedures for district charter schools to ensure students are timely enrolled and provided FAPE. By March 2, the district must provide the department a copy of the district’s revised late enrollee policies and procedures for district charter schools.

This concludes our review of this complaint.

//signed CST 1/26/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy