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IDEA Complaint Decision 08-001

On January 4, 2008, the Department of Public Instruction 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 are whether the district, during the 2007-2008 school year:

  • Properly implemented a student’s individualized education program (IEP) regarding provision of adaptive writing tools and adaptive seating and properly responded to the parents’ concerns in November 2007 regarding these IEP elements;
  • Provided required physical therapy services to the student; and
  • Properly responded to the parents’ requests to receive copies of their child’s education records.

The student’s IEP that was in effect at the beginning of the 2007-2008 school year and the student’s current IEP specifies the student will use adaptive writing tools daily during fine motor activities and adaptive seating daily during activities on the carpet. In the beginning of the school year, the student used the adaptive writing tools most of the time, but did not use them for coloring activities. The student used the adaptive seating when it was for a period of more than five minutes. If the seating was for less than five minutes, the teacher gave the student the option of using the adaptive seating. On November 2, 2007, the IEP team met, and during this meeting, it was clarified both the adaptive writing tools and the adaptive seating were required to be provided as described in the student’s IEP, and they were not optional during certain periods of time. Since the November meeting, both the adaptive writing tools and the adaptive seating have been provided as required by the IEP.

The student’s IEP in effect for the beginning of the 2007-2008 year specified the student would receive physical therapy six times per month for 20 minutes per time period. On November 2, 2007, the IEP team met to conduct a reevaluation and to review and revise the student’s IEP. Another meeting was held on November 16, 2007, to finish developing the IEP. The November 16, 2007, IEP reduced the amount of physical therapy to 30 minutes per month. From the beginning of the school year until the beginning of November, the physical therapist met with the student five times. The physical therapist is available at the building two days per week. During this time period, the student was absent six of the days when physical therapy was scheduled. A school district is generally responsible for making alternative arrangements to provide services set out in a student’s IEP when other school-related activities make either the student or the service provider unavailable during the time the services are regularly scheduled. A district is not obligated to do so when the student is unavailable for other reasons, as during absences from school. During long-term absences which are related to a student’s disability, it may be appropriate for an IEP team to meet and determine whether modification of the student’s placement is warranted. There is no evidence there was a long-term absence that warranted a change of placement. Rather, the student was absent on some Tuesdays, when the physical therapy was scheduled. Consequently, although the student did not receive the required amount of physical therapy during this time period, it was because of student absences rather than a failure to implement the IEP. In addition, the physical therapist attempted to accommodate for the absences by increasing the amount of therapy provided when the student was available.

Finally, on October 15, 2007, the parents requested copies of any report that would be presented at the November IEP team meeting. At the November 2, 2007, IEP team meeting, the occupational therapist distributed a report to the IEP team, including the parents. However, the report was completed just shortly before the meeting because there was a delay in obtaining consent for the evaluation, and, therefore, it could not have been given to the parents prior to the meeting time. Two other reports were referred to during the November meeting but were not distributed or provided to the parents. These reports were also not completed in advance of the meeting because of delay in obtaining consent. During the meeting, the parents were provided with a copy of the draft IEP. District staff, however, insisted on collecting all of the copies of the draft IEP and the occupational therapy report at the end of the meeting. District staff wanted to collect copies of the draft IEP so the revisions could be made as discussed during the meeting. The district included a copy of all of the reports when they mailed the parents a copy of the revised IEP on December 13, 2007.

A district is required to permit parents, on request, the right to inspect and review their child's education records maintained by the district. This review must be without unnecessary delay and before any meeting regarding an IEP. The right to inspect and review records includes the right to request the agency provide copies of the records containing the information if failure to provide the copies would effectively prevent the parent from exercising the right to inspect and review the records. The parents stated in the complaint it was impossible to listen to district staff, read the report and draft IEP, and participate in the IEP team meeting. Furthermore, state pupil record law requires districts to provide a copy of behavioral records upon request. Consequently, any report or draft IEP that was available at the IEP team meeting should have been given to the parents at that time per their request. All of the reports have been provided to the parents, and the draft IEP is no longer requested. However, if the parents request an IEP team meeting in order to ensure their meaningful participation, the district should schedule it at mutual convenience.

Within thirty days from the date of this decision, the district must develop a corrective action plan to ensure that IEPs are implemented, and parents are given timely access to educational records.

This concludes our review of this complaint.

//signed CST 3/4/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy