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IDEA Complaint Decision 05-006

On January 31, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District. This is the department's decision regarding that complaint. The issues relate to the 2004-2005 school year.

Whether the district properly implemented a student's individualized education program (IEP) regarding the location where special education services are to be provided and the provision of supplemental aids and services and behavioral supports.

On May 19, 2004, an IEP team meeting was held for the child to develop an annual IEP. The IEP stated that the student's behavior impeded his learning and that of others. The child had sensory and movement issues, experienced a difficult time attending in large groups or sitting at his desk, and distracted peers. The student was not easily redirected to activities; he often had tantrums or cried when he did not get his way. Positive behavioral interventions included verbal cues such as counting down from ten to zero; the use of verbal and visual cues first, followed by peer role playing; and movement breaks to assist the child in his environment. The IEP included goals and objectives to improve verbal communication skills, increase positive interactions with peers, and demonstrate behaviors that promote a positive learning environment for him and others.

The IEP must specify special education and supplementary aids and services that will be provided to the child to advance appropriately toward annual goals and be educated with other children with disabilities and nondisabled children in regular classes, the general curriculum, and in extracurricular and other nonacademic activities. The amount of services to be provided must be stated in the IEP so that the level of commitment of resources will be clear to parents and other IEP team members. The program summary on the May 19, 2004, IEP states that "Special education services will be provided for all academic, social, and adaptive skills where and when assistance, or direct instruction is required." The frequency and amount for these services was listed as daily and 100%. The location of these services was listed as both general and special education rooms. Both the special education services to be provided as well as the location of those services lacked the specificity to clearly communicate to parents and other IEP team members the amount of special education to be provided or where the services are to be provided. Although the IEP states the student will receive special education services 100% of the time, it also indicates that services will be provided when assistance or direct instruction is required.

The IEP also states the extent to which the student will not be involved full-time in general curriculum as: "At times, the student's educational needs may best be met in a quiet, less distracting setting. This option will be dependent upon the activity or skill being taught and whether it is in the student's best interest. This first instruction option will be the general education classroom." This statement does not clearly indicate the extent of the student's involvement in the general curriculum. It also does not clarify the extent of the student's removal from the regular education setting.

Within 30 days, the district must conduct an IEP team meeting to clearly specify the frequency, amount, and location of the special education and related services to be provided and develop a proper statement regarding the student's participation in the general curriculum. The district also will submit proposed corrective action to ensure staff understands these requirements. The district will submit a copy of this IEP upon completion but no later than 45 days from the date of this decision.

Whether the district properly responded to the parent's request in August for an IEP team meeting and to the parent's request in September for a functional behavioral assessment.

On August 16, 2004, the parent sent a letter to the district expressing concerns over the approaching school year, specifically around positive behavioral supports to address behavioral issues and requested that the IEP team reconvene within the next two weeks prior to the start of school on September 2, 2004. A meeting, which was not an IEP team meeting, was held on September 1, 2004, to discuss the parent's concerns. The parent alleges that during the September 1, 2004, meeting she requested a functional behavioral assessment and that the district agreed to provide one after about three weeks of observation of the student to determine if and when the behaviors occurred. The request for the functional behavior assessment was made on the second day of school. The district believes that there was mutual agreement between the district and parent in collecting data during the first three weeks.

An IEP team meeting was held on October 14, 2004, to determine continuing eligibility for special education, to review and revise the IEP, and to determine continuing placement. A behavior intervention plan included positive staff responses to both target and problem behaviors, as well as a five step crisis plan. Supplemental behavior strategies were listed on a separate sheet. In this case the district did observe the student's behavior in response to the parent's request and then modified the IEP in light of the information collected. While the district did not hold an IEP team meeting within the time requested by the parent, it did meet with her promptly and held an IEP team meeting after collecting needed information. The district responded properly to the parent's request for an IEP team meeting and a functional behavioral assessment.

This concludes our review of this complaint.

//signed 4/25/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy