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IDEA Complaint Decision 05-007

On February 14, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the School District of Bayfield. This is the department's decision regarding that complaint. The issues are addressed below:

  • Whether the district ensured that individualized education program (IEP) teams which met between March 2004 and February 2005 considered positive behavioral interventions, strategies and supports to address the student's behavior impeding learning.

  • Whether the district properly involved the student's parent in reviewing and revising the student's behavior plan during a January 2005 IEP team meeting.

The parent's primary concerns related to these issues are that the IEPs developed during the March to February time period do not include positive behavioral interventions and supports and that the student's behavior intervention plan was developed prior to the January meeting and without her participation. Positive behavioral supports or interventions focus on two areas: modifying the environment to try to prevent challenging behaviors and/or addressing behavior by teaching replacement behaviors and skills. Examples of positive behavioral supports or interventions include modifying or adjusting instructional strategies, curriculum and materials; modifying or adjusting classroom seating, arrangement, or traffic patterns; modifying or adjusting testing and evaluation procedures; providing increased opportunities for students to make choices; providing predictable classroom routines; foreshadowing change; cueing students; having clear, consistent expectations and consequences in classrooms and throughout the school.

Materials submitted by the district in response to this complaint document this student's continuing disruptive behaviors during this time period. Five IEP team meetings were conducted between March 2004 and February 2005. The parent attended all of these meetings. The IEPs which were reviewed and revised during these meetings include various strategies to address the student's problem behaviors in school. At the request of the parent and child's doctor, IEP teams included in the student's IEPs occupational therapy services intended to reduce the problem behaviors. The IEPs include behavior intervention plans to respond to several of the behaviors. These plans describe the behaviors to be addressed, identify how staff are to respond to the behavior, include explaining to the student what he is doing wrong and what behavior is expected, as well as offering the student choices in responding to the explanation, and the plans identify the consequences for student behavior at several choice points. The IEPs provide for increasing amounts of time in special education classroom settings and ultimately reducing the length of the student's school day, which was increased again in response to the student's improved behavior. The IEPs also require additional supervision of the student during times of the school day when the behaviors are most likely to occur. Finally, the more recent IEPs include a schedule of five times during the day when the student is to have either food or activity breaks.

In response to this complaint, one of the student's special education teachers submitted a description of the program she uses in her classroom and described how she adapts the general program to meet this student's particular needs. The teacher describes how she attempts to use various activities or subjects which the student enjoys to encourage learning and improved behaviors. She describes a point system which she uses with the student and indicates the various ways she attempts to positively reinforce desirable behaviors. These positive approaches to the student's behavior are not directly reflected in the student's IEPs developed during this time period. The law does not require that particular teaching methodologies like those described by the child's teacher must be described in students' IEPs. An IEP team may include methodologies in the IEP if the team determines that particular approaches are necessary to meet the child's needs. The department concludes that the district did include positive behavioral interventions and supports in the student's IEPs during the time period under review.

The IEP team which met in January 2005 modified the student's behavior plan. The team considered a document entitled "Behavior Intervention Planning Form" which is dated January 6, while the meeting occurred on January 17. The parent maintains that this document was prepared in advance of the meeting, and she was not afforded the opportunity to participate in its development or the modification of the behavior plan. The district provided the department with an audiotape of the January IEP team meeting. There was a brief discussion about documents which had been prepared in advance of the meeting indicating that they were prepared in order to foster discussion and that the documents are subject to modification during the meeting. The parent and the student's grandmother, who participated by telephone, were active participants during the meeting. The district properly included the parent in the decisions which were made during the January 2005 IEP team meeting.

  • Whether the district implemented a student's IEP between March 1 and December 1, 2004, regarding occupational therapy services.

  • Whether the district, during the 2004-2005 school year, properly trained the student's aide regarding the student's sensory needs.

  • Whether the district properly stated the amount of supplementary aids and services to be provided to the student in IEPs developed between March 2004 and January 2005.

The student's IEP in effect between March 2004 and January 2005 requires occupational therapy services three times per week for thirty minutes each session. The occupational therapist maintains extensive notes of her therapy sessions with the student. These notes reflect that the student did not receive required therapy several times during this time period because the therapist was a participant on IEP teams for other students and in one instance was testing another student. The therapist confirmed that she did not provide the student with make-up services for these missed sessions. There are circumstances when a district is not required to make up missed therapy sessions, but a therapist's attendance at another student's IEP team meeting or conducting testing for other students is not such a circumstance. The district must conduct an IEP team meeting no later than September 16, 2005, to determine whether the student requires additional occupational therapy services as a consequence of the missed therapy sessions. The district will provide the department with a copy of the revised IEP no later than September 30, 2005. The district also will submit to the department by September 19, 2005, proposed corrective action to ensure that related services required in students' IEPs are provided.

None of the IEPs in effect during the 2004-2005 school year specifically requires training of the aide who is to work with the student. The district hired the aide who works with the student in part because that individual has a background working with students who require sensory integration techniques. The occupational therapist provided training to the aide related to this student's sensory needs. The occupational therapist also regularly observed the aide working with the student during the school day and concluded that the aide did not need additional support or training when working with the student. Her therapy notes confirm this, as well. The department concludes that the district properly trained the aide to work with the student.

The IEP which the district provided to the department covering the period January 2005 to November 2005 requires occupational therapy services on a consultation and monitoring basis. This consultation was at least in part to work with, and provide supervision of, the aide who works with the student. The amount and frequency of this service is stated in the IEP to be "as needed." No other amount or frequency is noted: The IEP does not describe the circumstances under which occupational therapy consultation or monitoring is required. The amount of services must be stated in the IEP so the level of the LEA's commitment of resources is clear. If it is not appropriate to state the amount of service as an amount of time, the IEP may describe the circumstances under which the service is needed.

An interview with the occupational therapist disclosed that the therapy room is across the hall from the student's classroom and that the therapist periodically observed the student during the school day. Her therapy notes for this student also reflect consultation with other staff. The department is not able to determine whether the district provided the required amount of occupational therapy following development of the IEP for the period January 2005 to November 2005 because the statement of the amount of service in the IEP is not clear. The district will ensure that occupational therapy services are properly stated in the IEP developed for the student in September 2005. The department is working with the district as a consequence of an onsite procedural compliance review conducted in the district. One of the areas of review relates to proper statements of the amounts of service. General district-wide corrective measures related to this procedural requirement are being addressed through the onsite review process.

The student's IEP at the beginning of the 2004-2005 school year requires supplementary aids and services which are described as "monitoring while in the regular education classroom, during times of transition, and during periods of unstructured learning such as P.E." The amount and frequency is described as "as needed throughout the day." The student's IEP developed in November 2004 modified the statement of service to read "Aide: need to monitor behaviors due to aggression especially during times of transition and during periods of unstructured learning time such as recess, lunch and Phy. Ed." The statement of the amount and frequency of service is the same as in the previous IEP. The IEP developed in January 2005 does not require supplementary aids and services. Given that the service is monitoring in specified environments, the department concludes that the district properly described the circumstances under which the service is required.

  • Whether the district followed required procedures when suspending the student during the 2004-2005 school year.

According to district records provided to the department, the student was suspended from school for a total of 16 days during the school year through mid-May 2005. The IEP team which met on January 17, 2005, reviewed the student's current behavior in considerable detail. The IEP documents consideration of the function of the student's behavior, includes present levels of behavioral performance, establishes behavioral goals and includes a behavior intervention plan. At that point, the student had been suspended for a total of nine days. The student's eleventh day of suspension occurred on February 1, 2005. On February 17, 2005, an IEP team met again to review the student's behavior intervention plan. The IEP team made changes in the student's program, including shortening the student's day and deciding that the student would be educated only in special education environments through the end of the school year.

School districts are permitted to remove students with disabilities from school for more than ten days in a school year to the extent removal would be used with children without disabilities. Districts are not required to provide educational services to students during the first ten days of suspension in a school year. Beginning with the eleventh day of removal in a school year, the district must provide services to the student to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in the student's IEP. School personnel, in consultation with the student's special education teacher, determine the extent to which services are necessary. Further, either before, or not later than 10 business days after, the eleventh day of removal, the IEP team must meet to review the student's behavior intervention plan and its implementation and modify the plan and its implementation as necessary to address the behavior. If a child with a disability who has a behavioral intervention plan and who has been removed from the child's current educational placement for more than 10 school days in a school year subsequently is subjected to a removal that does not constitute a change of placement, the IEP team members must review the behavioral intervention plan and its implementation to determine if modifications are necessary. If one or more of the team members believe that modifications are needed, the team must meet to modify the plan and its implementation, to the extent the team determines necessary.

IEP teams met on January 17 and February 17, 2005. The student had been suspended a total of nine cumulative days when the team met on January 17 and reviewed the student's behavior plan. The January 17 IEP extensively documents the team's consideration of the student's behavior, including its function. Although the team did not meet within ten business days following the eleventh cumulative day of suspension, it did meet 12 business days after the eleventh day of suspension and had met just two weeks prior to the eleventh day of suspension. No other corrective action is required.

The school psychologist who acts as the district director of special education conferred with the student's special education teacher regarding the services to be provided to the student beginning with the eleventh day of suspension during the school year. The district concluded that individual tutoring would be offered to the student and the director conveyed this decision to the child's parent. The eleventh day of suspension occurred on February 2 and then the student was suspended on February 9, 10 and 11. The IEP team met on February 17 and again reviewed the student's behavior plan. The district ensured that the IEP team reviewed the student's behavior plan for suspensions which occurred after the eleventh day of suspension during the year. The district followed required procedures when suspending the student during the 2004-2005 school year.

  • Whether the district, in November 2004, disclosed personally identifiable information from the student's record to the child's doctor without obtaining parent consent.

State and federal law require that parental consent must be obtained before a school district releases personally identifiable information from a child's education records. Federal law requires that the district receive signed, written consent prior to releasing such information. By letter dated November 29, 2004, a district staff member released personally identifiable information from this student's record to the child's doctor. The letter indicates that it is in response to a letter from the doctor. District staff maintain that the parent verbally consented to district staff responding to the doctor in writing, but acknowledges that the district did not receive signed, written consent from the parent before releasing the information. The district immediately will ensure that the district receives signed, written consent from a parent or adult student prior to releasing personally identifiable information from a student record and will submit proposed corrective action to the department no later than September 19, 2005, to assure the district meets this requirement.

This concludes our review of this complaint.

//signed CST 6/20/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy