On February 9, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (school). This is the department’s decision regarding the complaint. The issues in the complaint are identified below and pertain to the 2023-24 school year.
Whether the school properly implemented the individualized education program (IEP) of a student with a disability regarding supplementary aids and services, and instruction in executive functioning skills, emotional regulation, communication, and social skills.
Local educational agencies (LEAs) must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. LEAs meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. Each student's IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
The LEA in this complaint is a public independent charter school, not affiliated with any public school district, which serves students from 4-year-old kindergarten through grade 12. The student who is the subject of this complaint attends the school and is in grade 8. The student’s IEP developed on September 1, 2023, described the disability related needs in the areas of executive functioning, social communication skills, self-help skills and behavior. The IEP notes the student’s behavior impedes their learning or that of others, specifically that the student struggles to follow classroom expectations and frequently distracts peers. The student also has communication needs that impede their learning when the student becomes dysregulated. The IEP notes that the student’s parents' concerns include that the school ensure the student has a calm, quiet place to help them become regulated, and that they have daily communication with the school.
In the complaint, the student’s parent indicated that school staff failed to send home daily communication as discussed in the student’s IEP. In response to an email from the parent in December 2023, school staff revised a daily communication form to limit the communication to missed assignments and daily skills. The parent acknowledged the school created the form but contends staff did not consistently complete it and share with the parent. Specifically, the parent claimed the school failed to send the form to them twice during the week of January 22, 2024, and failed to send any forms home on February 7 and 8, 2024. The staff verified the form was not sent home on a few days when a staff person was absent. Since the complaint was filed, the staff has developed tracking notes to ensure daily communication is sent home. The daily tracking notes also include information about communication between staff and outside providers who work with the student.
The student’s IEP includes a visual chart to assist the student to communicate when dysregulated. School staff described providing the student emotional support each day as the student was greeted each morning by an adult to ascertain their mood. Furthermore, the staff ensured the student had a morning and afternoon break to walk or exercise and could use a medicine ball to warm-up. The student could also use a wobble seat or pressure blanket and noise canceling headphones.
The IEP includes a provision of a quiet, small area in the classroom with sensory supports provided. In the complaint, the student’s parent expressed concern that the school had not provided a quiet space inside the student’s classroom, and the student was spending a great deal of time underneath a staircase outside the classroom. The staff stated there were other quiet spaces near the classroom, but the student opted not to go to those locations but preferred to sit under the stairs where there were no bright lights, and the student could see the activity in the classroom. Staff indicated it was difficult to encourage the student to return to class from under the staircase and the student would miss out on activities in the classroom. School staff told the department’s investigator that the school administration did not want to designate a spot in the classroom as the student’s quiet corner as it was already difficult to accommodate a classroom of forty students.
The IEP includes specially designed instruction for 100 minutes weekly in adaptive self-help skills, executive functioning skills and language, and specially designed instruction in social skills, behavior development, and social language for 50 minutes each week. The school provided documentation demonstrating the special education teacher provided the specially designed instruction as required in the IEP. The teacher provided notes from a computerized tracking system, including the date and time and type of service provided for the student. The student also requires direct occupational therapy (OT) services to support self-regulation strategies for 20 minutes per week. The school did not provide OT for the student the second week of November 2023, and the weeks of February 1 and February 8, 2024, as the therapist was absent and did not have a substitute. The school did not properly implement the student’s IEP with regard to a quiet space within the student’s classroom, daily communication, and occupational therapy.
Whether the school properly developed and implemented the student’s IEP to allow the student to participate in nonacademic and extracurricular activities.
LEAs must ensure that each student with a disability participates with nondisabled children in nonacademic and extracurricular activities, including meals, recess periods, and other activities, to the maximum extent appropriate given the student’s unique needs. Each student's IEP team must determine whether the student needs supplementary aids and services in order to participate in nonacademic and extracurricular activities. 34 CFR § 300.117.
In September 2023, the school held a week-long camping trip as part of the curriculum for all students at the student’s grade level. During the trip, the student was involved in behavioral incidents including running ahead of staff where they could not be seen, throwing acorns at others and shouting slurs and threats at other students. The staff stated the student was disturbing other students by slapping the tops of their tents to scare them. The staff called the parents and asked if they could come to the site to be with the student, but ultimately decided to send the student home.
The parent asserted the school failed to provide adequate staff to support the student during the camping trip as no special education staff were present to support the student on the trip. The parent also noted the school’s plan to contact the parents so they could provide support to the student during the trip as needed was inadequate to provide support to the student.
The school asserts the IEP team discussed the camping trip at the September 1, 2023, IEP team meeting. However, the IEP does not include any documentation of how the student’s IEP services were to be provided during the camping trip. The student’s special education teacher did not attend the first few days of the camping trip and there was no plan for another staff person to provide the student needed support. The camping trip was part of the curriculum for all students and the school should have provided the student’s IEP services on the trip. The IEP did not properly implement the student’s IEP to support the student on the trip.
Whether the school properly provided special education services using appropriately licensed and trained staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Properly licensed special education teachers must provide special education services. 34 CFR § 300.156; Wis. Stats § 118.19. The student’s parent raised concern that staff serving the student were not properly qualified and did not understand the student’s needs. The school provided documentation confirming the special education teacher and occupational therapist are properly licensed. The school properly provided special education services using appropriately licensed and trained staff.
Within 30 days of the date of this decision, the school must reconvene the student’s IEP team to determine whether compensatory services are required due to the school’s failure to properly implement the IEP. The IEP team must review the services and supports described in the IEP and ensure they will be properly provided, including providing a quiet space for the student in the classroom. The IEP team must discuss and document plans for supporting the student during off site curricular activities including future camping trips, as well as ensure the student’s IEP contains necessary supplementary aids and services to ensure the student can participate in nonacademic and extracurricular activities. The school must send a copy of the student’s IEP, including documentation of the discussion of compensatory services, to the department no later than 15 days following the IEP team meeting.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.