On August 28, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding the complaint. The issue are whether the district, beginning in September, 2016, properly implemented the individualized education programs (IEPs) of student with disabilities in preschool through grade three, and utilized appropriately licensed staff to provide special education services.
Properly Implemented IEPs
Specially designed instruction, related services, and supplementary aids and services in a student’s IEP must be must be provided to the student as specified in the IEP. In this complaint, the department reviewed the IEPs of 12 students and identified three areas in which the district had not provided special education as specified in the IEP.
Specially Designed Instruction
Several students did not receive specified specially designed instruction due to teacher scheduling conflicts.
The IEPs for two students specified instruction for 60 minutes per day in reading and math. The students consistently received 45 minutes of instruction instead of the required 60 minutes, as the special education teacher’s availability was in conflict with the students’ scheduled recess period.
The IEP for one student specified instruction for 30 minutes per day in language arts and math. The student did not receive the specified instruction for the first month of the 2017-18 school year as a teacher was not available.
The IEP for another student specified instruction for 30 minutes per day in math. The student did not receive the specified instruction for the first month of the 2017-18 school year as a teacher was not available.
Finally, the IEP for one student specified instruction for 60 minutes per day in math and language arts. The student did not receive the specified instruction for the first month of the 2017-18 school year as a teacher was not available.
In not providing specially designed instruction as specified in the students’ IEPs, the district did not properly implement the IEPs of students with disabilities. Within 30 days the district shall convene the IEP team for each of the above students to discuss whether compensatory services are required to address the failure to provide the specified specially designed instruction. The department will provide the names of the students to the district in separate correspondence. The district shall revise each student’s IEP to document the results of the discussion and any agreed on compensatory services. The district shall provide copies of the revised IEPs to the department.
Adult Supervision
Seven of the 12 IEPs reviewed in this complaint include some level of adult supervision for the student as a supplementary aid or service. The supervision is variously described as “monitoring of safety,” “transitions,” “supervision,” or “daily living skills assistance.” In most instances the frequency and amount is described in minutes per day with an accompanying lengthy narrative. Often the frequency and amount is not in accord with the narrative, for example:
Service: Monitoring of Safety
Frequency/Amount, 45 minutes/1.0 time per day
Location: Gym/Hallways/Playground
Duration, Frequency, and Location: Due to his disability, and for his safety, (the student) requires 1:1 monitoring and supervision throughout the entire school day in all school locations
In addition the narrative descriptions are often so broad that they lack specific objective criteria that makes it clear when the services must be provided, and for how much and how long. In failing to make the district’s commitment of resources clear in the context of adult supervision, the district did not properly implement the IEPs of students with disabilities. Because of the lack of clarity in the students’ IEPs the department is unable to identify specific instances of non-implementation regarding adult supervision.
As corrective action, the district shall within 30 days review and revise the IEPs of students identified by the department to correctly document the frequency and amount for the supplementary aid and service of adult supervision. The district shall provide copies of the revised IEPs to the department. Following the IEP review and revision process the district shall ensure resources are available so that adult supervision is provided to students as specified in their IEPs.
Access to Resource Room
Eleven of the twelve IEPs reviewed in this complaint specified student access to a resource room for test taking or quiet work space. All 11 IEPs described the extent of access to the resource room using terms like “as needed” and “at student request.” District staff reported to the department that they had been reluctant or unable to send certain students to the resource room because adult supervision was frequently unavailable. In the case where it is impossible or inappropriate to describe supplementary aids and services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided. Statements such as “as needed,” “as deemed necessary,” “when appropriate,” or “available daily” do not make clear the LEA’s level of commitment of resources. Specific objective criteria should be used to describe when a particular service will be provided. This information makes it clear when the services must be provided, and for how much and how long. In failing to make the district’s commitment of resources clear in the context of student use of the resource room, the district failed to properly implement the IEPs of students with disabilities. Because of the lack of clarity in the students’ IEPs, the department is unable to identify specific instances of non-implementation regarding student access to the resource room.
As corrective action, the district shall within 30 days review and revise the IEPs of students identified by the department to correctly document the frequency and amount for the supplementary aid and service of access to the resource room. The district shall provide copies of the revised IEPs to the department. Following the IEP review and revision process the district shall ensure resources available so that access to the resource room is available to students as specified in their IEPs.
As additional corrective action, the district shall within 30 days submit to the department a corrective action plan outlining the steps it will take to ensure that all district staff responsible for the development of IEPs are familiar with how to properly document the frequency and amount of supplementary aids and services, and ensure IEPs are properly implemented.
Appropriately Licensed Staff
Each school board must ensure every teacher and program aide holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed before engaging in duties of such a position. The LEA must ensure professional responsibilities are carried out by a special education teacher or program aide who is licensed by the department. For the 2017-18 school year, the district employs five persons in the role of special education program aide for preschool through grade three. Three of the five persons employed do not hold current special education program aide licenses, and have no pending license applications. One of the five has a pending, but incomplete, application for a special education program aide license. For the 2017-18 school year, the district employs a special education teacher who is licensed to provide services to students in grades 1-12. This person is assigned to provide services to one or more kindergarten students. In employing staff who do not hold valid certificates, licenses, or permits issued by the department the district has failed to use appropriately licensed staff to provide special education services. Within 30 days, the district must determine whether the persons employed as special education program aides are eligible to hold special education program aide licenses, and if so ensure complete applications are filed with the department for the relevant staff. The district must also ensure that all kindergarten students are provided services by an appropriately licensed special education teacher be either assigning an appropriately licensed teacher, or ensuring the current teacher submits a completed application for the appropriate license. The district must also conduct IEP team meetings to determine whether compensatory services are required for failure to provide services by appropriately licensed staff, and develop a corrective action plan to ensure that staff hold appropriate licenses for their position.
This concludes our review of this complaint.
//signed CST 10/27/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support