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IDEA Complaint Decision 09-027

On April 15, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Frederic School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2008-2009 school year, properly notified the parent of individualized education program (IEP) team meetings and properly reduced the student’s schedule.

A school district must ensure a parent of a student with a disability is a participant on the IEP team and must take steps to ensure one or both of the student’s parents are present at each IEP team meeting or are afforded the opportunity to participate by other means. The parent must be provided written notice a reasonable time before an IEP team meeting. A meeting may be conducted without a parent in attendance if the district is unable to convince the parent they should attend.

In a case of a student who resides in foster care, unless otherwise notified, the district should presume the student’s biological or adoptive parent remains the parent for purposes of education decision-making. While it is recommended the social service agency responsible for the foster placement inform the district of the status of the student’s legal custody, it is the responsibility of the district to determine who may serve as the student’s parent for the purpose of special education decision-making. Generally, a foster parent cannot act as the student's parent for the purpose of special education. A district may determine a foster parent has the rights and responsibilities of a parent under special education law only if the district first determines the legal right of the student’s parent to make educational decisions concerning the student has been extinguished by termination of parental rights, transfer of guardianship or legal custody, or by other court order.

The student transferred into the district on September 2, 2008, and left the district on November 17, 2008. While enrolled in the district, the student resided in a foster care home. The student’s parent retained parental rights. Following receipt of transfer records, an IEP team meeting was held on September 9, 2008, to develop an annual IEP. The student’s parent was not invited to the meeting and did not participate. The district assumed it was sufficient for the county social worker to communicate with the parent about the student’s program, and did not inquire about the status of parental rights. The district incorrectly involved the foster parents in the IEP team meeting, because it was unaware the student’s mother and father retained parental rights and needed to be included on the IEP team.

A meeting was held on November 3, 2008, to address increasing and significant behavioral concerns. All required IEP team participants attended with the exception of the student’s parent. However, the meeting was not considered an IEP team meeting. There was no IEP documentation generated prior to, or following, the meeting. The student’s parent was not invited to the meeting, and did not participate by other means. The student’s foster parent was invited and participated. At the meeting, it was agreed the student would attend school on a reduced schedule while more appropriate placement options were explored. The student attended school on a reduced class schedule for five school days prior to being moved to a residential placement in another school district. The district did not properly revise the student’s IEP when it reduced the student’s schedule outside the context of an IEP team meeting and without parental input. The student no longer is enrolled in the district. No student specific corrective action is required.

Upon receipt of this complaint, the district reviewed the case and their policies and procedures related to involving parents of students in foster care in the IEP process. The names and addresses of all legal guardians of students with disabilities enrolled in the district have been verified and entered into the district’s computerized IEP system. The district has revised its student registration procedures and form, and has provided training to appropriate staff regarding the district’s responsibility for properly assigning parents to IEP teams and notifying parents of IEP team meetings. Each building’s secretary will be responsible for carefully reviewing student registration forms and, for students with disabilities, forwarding a copy of the form to the special education department. The special education department will be responsible for obtaining any missing information and for entering the names of all legal guardians into the district’s computerized IEP system. The department accepts this corrective action.

This concludes our review of this complaint, which we are closing.

//signed CST 6/11/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy