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IDEA Complaint Decision 07-031

On April 6, 2007, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Marshall Public Schools. This is the department’s decision regarding that complaint. The issues, which relate to the 2006-2007 school year, are addressed below.

  • Whether the district properly provided the parents notice describing evaluation procedures and received written consent for testing.

On December 5, 2006, the district provided the parents with notice and requested consent for conducting additional assessment as part of the student’s reevaluation. The parents provided consent on December 6. In response to the parent concerns that the evaluation procedures include sufficient information about the student’s level of fatigue in school, the special education teacher and school social worker developed a questionnaire intended to collect information about the student’s functioning from his general education teachers. The special education teacher notified the parent of these plans by email on January 4, 2006. Later the same day, the parent responded she believed a questionnaire was an excellent start, made a number of recommendations about questions to include, and suggested that systematic observations be conducted, as well. The questionnaire and observations were not included in the original notice describing evaluation procedures, nor was the school social worker identified as an evaluator.

The director of special education acknowledged the district did not provide formal notice nor obtain written consent for the additional assessments, but believed the district had acted in good faith and had responded to the parent’s request. Even though the parent agreed additional assessment was needed, the district did not properly provide parents with notice nor receive written consent for the administration of the questionnaire and systematic observation of the student’s on task behavior. Within 30 days of the date of this decision, the district must submit to the department a proposed corrective action plan to ensure that the district will properly notify parents of any evaluation procedures the agency proposes to conduct and the names of the individuals who will conduct the evaluation, if known, and receive written consent prior to administering additional assessments.

  • Whether the district included, on the individualized education program (IEP) team, a special education teacher with recent training or experience related to the student’s known or suspected area of special education needs.

When a district conducts a special education evaluation, it must include on the IEP team at least one special education teacher who has recent training or experience related to the child’s known or suspected area of special education needs or, where appropriate, at least one special education provider of the child. If the special education teacher has a license in the child’s area of impairment, the teacher is generally presumed to meet the standard. Wisconsin does not license teachers in the area of other health impairment. If the teacher does not have a license in the child’s area of disability, the teacher may still meet the standard based on the teacher’s training or experience and whether the teacher provides special education services to the child.

The special education teacher who participated on the IEP team and attended IEP team meetings in January and March 2007 is licensed in adaptive physical education. She has served as the child’s special education teacher since the student began receiving special education services from the district and served as the special education teacher on the IEP team that first identified the student as having a disability on January 28, 2005. The teacher meets the standard for a qualified special education teacher as a result of her experience with the student and as the student’s special education provider.

  • Whether the district properly considered the results of a variety of assessment tools and strategies and used proper criteria when determining whether the student is a student with a other health impairment (OHI).

On January 19, March 20, and March 21, 2007, IEP team meetings were held to determine whether the student is a child with a disability. The parent asserts that the district did not adequately consider clinical observations and professional opinions when determining that the student did not meet criteria for OHI because the student’s medical condition does not adversely affect his educational performance.

OHI means that a child has limited strength, vitality, or alertness due to chronic or acute health problems which adversely affects a child’s educational performance. An IEP team must, based on evaluation reports, make the determination whether the criteria are met. The DPI OHI checklist was used by the IEP team and included in the IEP team evaluation report. In making its determination, the IEP team considered and documented a lengthy summary of findings from medical evaluations, physical and occupational therapy assessments, the gross motor evaluation conducted by the adaptive physical education teacher, classroom assessments, a teacher questionnaire, and systematic classroom observations. The IEP team discussed and documented the impact of the student’s health conditions on academic and physical activity and determined the student had made significant progress since first identified; his academic and motor performance was not significantly different from his peers; and his needs could be addressed without special education services. The IEP team documented the student responded well to general education accommodations and modifications including adapted seating, adapted writing set-up, short rest periods, redirection, prompts, and minimal accommodations to regular physical education lessons. The district properly applied eligibility criteria.

Following the IEP team decision, the parent provided the district with updated documentation dated April 5, 2007. The documentation consists of a letter from the student’s medical professionals addressed to school staff and includes information about the student’s condition that was not available when the IEP team met to determine eligibility. The letter specifies activities that should be avoided or significantly modified as a result of the student’s medical condition, including physical education. The school nurse is currently working with the student’s parents and physicians to develop an appropriate school health plan. A reevaluation may occur not more than once a year, unless the parent and the public agency agree otherwise. Within 30 days of receiving this decision, the district must either reconvene an IEP team meeting to reconsider whether the student meets OHI criteria in light of the new information provided by medical professionals or refuse to conduct a reevaluation and provide the parents with written notice of the refusal. If an IEP team meeting is held, the district must submit documentation of the meeting to the department. If the student is found to meet OHI criteria, the district must reconsider the student’s need for special education and submit a copy of the IEP team evaluation report to the department.

  • Whether the district provided the amount of physical therapy services described in the student’s IEP.

The parent received a letter from the director of special education dated September 24, 2006, notifying the parent the student’s physical therapist would be taking a medical leave of absence. The parent asserted she did not approve the change in service and there was a lapse in service between September 28 and when the student’s current physical therapist was hired and began providing services. The parent was not sure when a new physical therapist was hired.

The director of special education verified the district sent a letter to parents of students receiving physical therapy alerting them to an anticipated lapse in service. A copy of the letter was provided by the parent. In the letter, the district offered a plan to provide additional adaptive physical education as a substitute for physical therapy until they could hire an appropriately licensed physical therapist. The letter ended with an invitation to contact the director if the parent had any questions or concerns. Physical therapy logs documented the first therapist stopped providing services to the student on October 4, 2006. The new therapist began providing physical therapy services to the student on October 16, 2006.

A school district must ensure all services specified in a child's IEP are provided. The student’s IEP called for physical therapy services to be provided six times per month for twenty minutes each session during the school year. The student received four sessions in September totaling 85 minutes and five sessions totaling 140 minutes in October. The district acknowledges the physical therapy schedule was briefly disrupted due to the medical leave of the original therapist. However, the district promptly hired a new therapist and provided additional services to make up for missed sessions. The district appropriately provided physical therapy services to the student.

  • Whether the district properly implemented adaptive physical education services.

The student’s IEP includes a goal, benchmarks, and adaptive physical education services implemented within the general education environment. The adaptive physical education teacher provided services consistent with the IEP during regular physical education classes. Consultation with the student’s regular physical education teacher occurred as specified in the IEP. Needed modifications or accommodations were made to regular physical education units to allow the student to participate as safely and fully as possible. The adaptive physical education teacher consulted regularly with the student’s physical therapist regarding the student’s progress and physical needs. The district is in the process of developing an updated health plan for the student in coordination with the child’s parents and physicians. The special education teacher reported the student has met his adaptive physical education IEP goal and benchmarks. The district properly implemented adaptive physical education services.

This concludes our review of this complaint.

//signed CST 6/5/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy