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IDEA Complaint Decision 09-040

On June 1, 2009, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Watertown Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2008-2009 school year, properly included the parents in the annual review of the student’s individualized education program (IEP) and properly responded to the parents’ request for extended school year (ESY) services.

On May 20, 2009, the IEP team met to review the student’s annual IEP and determine placement. Prior to the meeting, district staff discussed the student’s IEP with the parent, and integrated the parent’s concerns in the section about present level of academic achievement and functional performance. At the meeting, staff presented the parents with an IEP drafted for review by the team. Federal regulations allow district staff to develop a draft IEP prior to the meeting, but the district should make it clear the services proposed are preliminary recommendations for review and discussion at the meeting. The district’s practice is to remind the IEP team the draft IEP is for review and discussion at the beginning of each meeting. The parent stated she had no concerns about the annual IEP and the annual IEP did not require additional revisions. The district properly included the parents in the annual review of the student’s IEP.

After the discussion about the annual IEP, the team talked about ESY services for the student. The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the provision of a free appropriate public education to their child. A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting. In April, some members of the student’s IEP team had meetings regarding the consideration worksheet and its applicability to the student. These meetings did not include the parent. The meetings, which staff held prior to the May 20 and June 1 IEP meetings, resulted in staff reaching conclusions regarding the child’s eligibility for ESY services. Although their preliminary conclusions were later discussed during the meetings, staff already had reached conclusions regarding the request for ESY services. Furthermore, prior to the IEP meeting, district staff told the parents the child did not qualify for ESY services and mailed information to the home about an alternative summer school program. On June 1, 2009, the IEP team met and discussed the consideration worksheet. No regular education teacher was present at the June 1 IEP meeting. The parents and staff comments on the consideration worksheet were written up, attached to the IEP, and included with a notice of refusal to the parents on June 8, 2009.

ESY services are required special education and related services provided beyond the limits of the school term if the services are needed in order for a child to receive a free appropriate public education. Individualized determinations about each child’s need for ESY services must be made by the IEP team which includes, at minimum, a parent, one regular education teacher, one special education teacher, and a representative of the local education agency. In making a determination about ESY services, which was communicated to the parents prior to the IEP team meeting, and failing to include the participation of the regular education teacher, the district failed to properly consider whether the student required ESY services during the summer of 2009.

The district must, within 30 days from the date of this decision, develop a corrective action plan to ensure all district staff understands the requirement to make ESY determinations at IEP meetings and with the participation of all IEP team members. The district must also conduct an IEP team meeting to determine whether the student requires additional services because of the failure to properly consider ESY services. The district must submit documentation of the IEP team’s decision to the department when it submits the corrective action plan.

This concludes our review of this complaint.

//signed CST 7/27/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy