IDEA Complaint Decision 09-008

On February 2, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Westfield School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2008-2009 school year:

• properly considered parental concerns about transportation;
• properly considered parental concerns about student progress toward annual goals;
• properly reviewed and revised the student’s individualized education program (IEP) goals;
• implemented short-term IEP objectives relating to the annual goal dealing with reading;
• removed deaf and hard of hearing services from the IEP without an IEP team meeting; and
• properly disclosed confidential student information.

The IEP team met on April 24, 2008 to conduct a reevaluation of the student and develop the student’s IEP. Both parents attended the meeting. During the meeting, the IEP team discussed parental concerns about the length of the student’s bus ride, the student’s progress and IEP goals.

In developing the student’s IEP goals for the 2008-2009 school year, the IEP team considered the results of the student’s reevaluation, progress toward current IEP goals, and parents' concerns. The IEP developed on April 24, 2008 included documentation of the parent’s concerns regarding the student’s progress. While some of the goals and benchmarks were similar to the prior year and some were dropped, some new ones were added. Adjustments were made to the student’s goals and benchmarks to address the student’s current performance, parents' concerns and state standards appropriate to the student’s grade placement. A number of the parents’ suggestions were reflected in the student’s IEP. The district appropriately addressed the parents’ concerns and reviewed and revised the student’s IEP goals.

The parents maintain the district failed to properly implement the student’s IEP because the student’s progress reports indicate “NI” (not implemented) for some benchmarks for certain quarters. One reading benchmark related to the student’s ability to predict what happens next in a series of events, was marked “NI” for the first half of the 2008-2009 school year. The student’s IEP includes a large number of benchmarks. There is nothing in state or federal law that requires a district to address every benchmark included in a student’s IEP each marking period. While it is true, the teacher did not work on every benchmark each quarter, every goal was addressed with various benchmarks introduced and emphasized at different times during the year. The teacher introduced prediction after the student sufficiently mastered a prerequisite reading benchmark. To date, all IEP benchmarks, including all reading benchmarks, have been introduced and worked on with the student and progress toward goal achievement appropriately reported to parents. The district properly implemented the student’s IEP.

During the April 24, 2008 meeting, the IEP team discussed the parents’ concerns about the length of the student’s bus ride. The team determined the student did not require special transportation and none was added to the student’s IEP. The IEP team’s consideration of the parents’ concerns was reflected in the IEP documentation provided to the parent.

The IEP team reconvened at the request of the parent on September 10, 2008 to discuss parental concerns and a doctor’s recommendation the student receive special transportation because of the student’s disability. During the meeting, the IEP team discussed the parent’s request for special transportation, the doctor’s recommendation and information from the student’s bus driver. The IEP team determined the note provided by the doctor was insufficient to justify special transportation and asked to contact the doctor for additional information. The parents refused to consent to allow district staff to contact the doctor or request additional information about the recommendation from the doctor. Based on the information available, district staff determined the student was able to safely ride the regular school bus with the accommodation of preferential seating. No changes were made to the student’s IEP.

Following the September 10, 2008 IEP team meeting, the district did not provide written documentation of the IEP team’s decision to the parent. When a parent requests the district consider a change in the student’s identification, evaluation, IEP, or provision of a free appropriate public education (FAPE), the district must provide prior written notice that meets all statutory requirements including the district’s decision to grant or refuse the parent’s request, a reason for the decision, and information about the procedural safeguards available to the parent. The district must provide timely written notice, even if the decision is to make no changes to the IEP. The district failed to appropriately respond to the parents’ request for a change in the student’s transportation when it did not provide written notice of the IEP team’s decision.

The parents assert the district removed deaf and hard of hearing services from the student’s IEP without an IEP team meeting. The IEP team addressed the student’s hearing status and needs during the April 24, 2008 IEP team meeting which the parents attended. A copy of the evaluation report and IEP was provided to the parents following the meeting. The student’s prior IEP and the IEP developed on April 24, 2008 were compared. Both reference a fluctuating hearing loss, include audiological services and reference prior use of an FM system that is kept in the classroom, but not needed. The student was not identified as meeting the criteria for having a hearing impairment. Deaf and hard of hearing was marked “no” by the IEP team as part of the consideration of special factors on the student’s IEP. No changes in services to address the student’s hearing needs were made to the April 24, 2008 IEP. The district did not remove deaf and hard of hearing services without an IEP team meeting during the 2008-2009 school year.

In their complaint, the parents maintain district staff contacted the student’s doctor and outside agency case worker after the parents revoked consent for such contact. Documentation provided by the parents, district and outside agency case worker indicate consent for contacting the case worker was verbally revoked sometime in June. The is no record of further contact with the case worker after June 3, 2008, and school staff confirm no contact was made following the parents’ revocation of consent.

There is also no indication the district released confidential information to the student’s doctor without parental consent. In a letter dated June 9, 2008, the parent requested the district to provide specific information to the student’s doctor. Subsequent to this June 9 letter, written and phone records of correspondence between the district and the parent on October 27 and November 5, 2008 include parental reminders that consent to correspond with outside medical professionals had been revoked, but there is no documentation of the exact date of revocation of consent. On September 10, 2008, the district requested permission in writing to obtain and release information with the student’s doctor regarding the doctor’s recommendation for special transportation. The parents did not respond to the written request, and during the IEP team meeting held the same day stated they would not provide consent. The district did not contact the doctor to discuss the student’s medical needs. There is no evidence the district disclosed or solicited confidential student information without parental consent to either the student’s doctor or outside agency case worker.

Within 30 days from the date of this decision, the district must submit to the department a corrective action plan to ensure the district provides timely written notice of the district’s decision in response to a parent’s request to change the student’s identification, evaluation, IEP, or provision of FAPE.

This concludes our review of this complaint.

//signed CST/AJC 3/30/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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