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IDEA Complaint Decision 08-045

On April 28, 2008, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Elk Mound Area School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2007-2008 school year:

  • Properly responded to a parent’s request for an individualized education program (IEP) team meeting for her child;
  • Properly responded to a parent request for student records;
  • Properly included the required participants during IEP team meetings;
  • Properly responded to a parent’s concerns regarding the provision of swimming; and
  • Provided the parent a copy of the student’s IEP.

On April 15, 2008, the parent presented a written request to the district for an IEP team meeting to discuss swimming instruction issues. An invitation to the meeting was dated April 18, 2008, and an IEP team meeting was held on April 23, 2008, for the purpose of addressing these issues. The district properly responded to the parent’s April 15, 2008, request for an IEP team meeting.

On April 29, 2008, the parent requested copies of the student’s records from the district. A district must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the district. The district must comply with a request without unnecessary delay and in no case more than 45 days after the request had been made. On May 22, 2008, the district provided the parent with the requested records. The district properly responded to a parent request for student records.

At the April 23, 2008 IEP team meeting, the physical education teacher left during the meeting, and the parent alleges she had never signed to excuse the physical education teacher from the IEP team meeting. Special education law requires the district to ensure the IEP team for each student with a disability includes the parent of the child; not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education environment); not less than one special education teacher of the student; and a representative of the local education agency.

A member of the IEP team may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the member’s area of the curriculum or related services if the parent, in writing, and the district agree to the excusal and the IEP team member submits, in writing, to the parent and the IEP team input into the development of the IEP prior to the meeting. In this case, the physical education teacher was not required to be excused because the IEP team need not include more than one regular education teacher. Two regular education teachers attended the April 23, 2008 IEP team meeting; the physical education teacher and the second grade teacher. The district properly included the required participants during IEP team meetings.

At the April 23, 2008 IEP team meeting, the team discussed the parent concerns regarding the provision of swimming. During the meeting, district staff offered several ways to provide assistance to the student. These included providing a special education aide to assist while the student was in the swimming pool and having the speech and language pathologist include “social stories” during the speech therapy sessions to address the student’s hesitation with swimming. District staff also discussed having the regular education swimming instructor use an individual plan with incremental steps to assist in overcoming the student’s hesitation and providing written communication regarding the student’s progress after each swimming session. The parent did not believe the assistance offered was sufficient, and no consensus was reached during the meeting. Furthermore, no revisions to the IEP were made. However, on April 24, 2008, the district sent the parent a letter indicating the student would be provided with the assistance as described above.

The IEP team should work toward consensus, but the public agency has the ultimate responsibility to ensure the IEP includes the services the child needs in order to receive a free appropriate public education. If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency's proposals or refusals, or both, regarding the child's educational program, and the parents have the right to seek resolution of any disagreements by initiating mediation or an impartial due process hearing.

The student’s IEP already provided for speech and language therapy and modified assignments. However, if the IEP team determined the student required additional assistance of a special education aide and written communication on progress, the student’s IEP should have been revised. If consensus was not reached and ultimately the district refused the parent’s requests, the parent should have been provided with prior written notice of the refusal. With that said, the department recognizes the district’s significant efforts in attempting to address the parent’s concerns and come to a resolution. Finally, the parent alleges the district did not provide her a copy of the April 23, 2008, IEP. As discussed above, if the IEP team determined the student required additional special education service, the IEP should have been revised, and the parent should have been provided a notice of placement along with a copy of the IEP prior to implementation.

Within 30 days of the date of this decision, the district will submit a corrective action plan (CAP) to ensure that IEPs are properly revised and parents are provided with proper notice. In addition, the district will reconvene the IEP team prior to the commencement of the 2008-2009 school year to determine if the student requires additional services in the provision of swimming instruction, and, if so, properly document these in the IEP. The district will submit a copy of the completed IEP to the department within two weeks following the IEP team meeting to address these issues.

This concludes our review of this complaint.

//signed CST 6/27/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy