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IDEA Complaint Decision 04-023

On May 26, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Washburn School District. This is the department's decision regarding that complaint. The issue is whether the district during the 2003-2004 school year, implemented the student's individualized education program (IEP) regarding phonics instruction, reading and writing, and the student's behavior intervention plan.

The IEP developed on February 11, 2003, indicates the student will receive 30 minutes of reading/writing instruction five times per week in the resource room and 15 minutes of phonics instruction five times per week in the resource room from February 19, 2003, to February 18, 2004. A time log submitted by the district indicates the student typically received 30 minutes of instruction each day from the learning disabilities teacher from September 9, 2003, to February 18, 2004. The IEP required that the student receive 45 minutes of instruction. The district acknowledges that the special education teacher did not provide direct instruction in phonics fifteen minutes per day in the resource room as required by the IEP but worked with the student on phonics during reading and English classes.

Documentation from the IEP meeting held on February 13, 2004, indicates the student no longer requires 15 minutes of phonics instruction five times per week in the resource room. The statement of present level of educational performance indicates the student demonstrates an ability to decode words and scored at a high level of proficiency on a phonics evaluation conducted on February 4, 2004. Because the child does not require additional instruction in phonics, no child-specific corrective actions are required at this time.

The IEP developed on February 13, 2004, indicates the student will receive 30 minutes of special education services for reading and writing five times per week. The parent contends that the student has not always received special education services on a daily basis due to teacher absences. The district acknowledges that, whereas, substitute teachers are generally hired when a special education teacher is absent or attending an IEP meeting, the district is not always able to obtain substitute teachers due to a shortage of substitutes. A district must provide special education and related services to a child with a disability in accordance with the child's IEP. The district has agreed to reconvene the IEP team to determine if compensatory services are necessary for the student due to teacher absences. On or before September 30, 2004, the district will provide written documentation to the department ensuring that special education and related services are provided to children with a disability in accordance with their IEPs.

On May 4, 2004, an incident occurred on the playground between the student and another child. A playground volunteer, acting under the supervision of the playground supervisor, intervened by holding the student by the arm. The student's special education teacher was called outside to assist, where she talked quietly with the student and convinced him to accompany her inside the building so he could calm down. The child's behavior intervention plan (BIP), included in the February 13, 2004, IEP, specifies to refrain from making physical contact with the student when he is upset, if possible. The child is to be given time to process a directive and choices of how he will comply. A special education teacher or the school principal is to be called, if the student is noncompliant. It also states in the IEP that the BIP will be distributed at the start of the IEP to all teachers and support staff who work with the student. The complainant believes that the playground volunteer was considered part of the support staff that works with the student and that the BIP would therefore be shared with the volunteer.

In the case of a child whose behavior impedes his learning or that of others, the IEP team must consider, when appropriate, strategies including positive behavioral interventions and supports to address that behavior. A child's IEP is to be accessible to each regular education teacher, special education teacher, or other service provider who is responsible for its implementation. Each teacher and provider is to be informed of his or her specific responsibilities related to implementing the child's IEP.

It is the practice of the district to provide general in-service training for volunteers. Playground volunteers are informed of the playground rules and of their role as a volunteer. They are not to discipline students but are to inform the playground supervisor if there is a concern. Because of confidentiality concerns, the district does not share child-specific information with volunteers. The district does not consider volunteers responsible for implementing a child's IEP. In this case, the playground supervisor was responsible. In the future, the district plans to provide more information on how to handle conflict with students on the playground as part of in-service training for volunteers and to incorporate the information in the playground volunteers' handbook. The district has also agreed to reconvene the IEP team to discuss more specifically who should receive information contained in this child's BIP.

This concludes our review of this complaint.

//signed CST 726/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy