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IDEA Complaint Decision 09-044

On June 9, 2009, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Racine 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 conducted an annual review of the student’s individualized education program (IEP), properly responded to a parent’s request for extended school year services (ESY), and provided the student the required hours and days of instruction.

The student attends school in a non-district placement determined by the IEP team. The private school offers year-round programming. The IEP team met on May 9, 2008, to develop the student’s annual IEP. The IEP developed on May 9 covered the period from May 9, 2008, through May 1, 2009, and included ESY services. The ESY services summary noted the amount and frequency of ESY special education services as “calendar consistent with the [private] school.” The duration of the ESY services was unclear, listed as “life of the IEP.” Based on this ESY summary statement, the parent believed the student would attend the private school in accordance with the private school calendar for the entire IEP period from May 9, 2008, to May 1, 2009. This is not what district staff intended. They intended for the student to receive ESY services during the summer of 2008 and attend school during the 2008-2009 school year on a calendar which approximated the district’s regular school calendar, but which corresponded with the daily schedule of the private school.

In response to the parent’s interpretation of the IEP, the IEP team met on October 29, 2008, to discuss the student’s schedule and the parent’s request the student follow the private school calendar rather than the school district calendar. IEP documentation notes the IEP team’s decision to deny the parent’s request and provides a reason for the team’s decision. ESY for the summer of 2009 was not discussed at the meeting. The IEP was revised to cover the period of October 29, 2008, to May 1, 2009 and the district provided the parent with a placement notice.

State and federal law give the IEP team the flexibility to make placement decisions, including modified school schedules, out-of-district placements, and the need for ESY services. Such decisions must be made based on the circumstances of the individual student. In making its decision about the calendar the student would follow, the IEP team considered the parent’s request and analyzed the student’s disability-related needs, the district’s regular school year calendar, and the private school calendar. The team’s final decision was based on information provided by the student’s teachers at the private school indicating the student “did not show regression related to off days from school.” A “mesh” school year calendar was discussed and adopted for the student. District staff believed this school year schedule would provide a free appropriate public education (FAPE) to the student. The district properly responded to the parent’s request for the student to receive services on the private school calendar and designed and implemented an IEP to provide FAPE to the student during the 2008-2009 school year through May 1, 2009. The IEP developed by the district was based on the student’s individual needs and provided for an appropriate number of hours and days of instruction.

The student’s IEP expired on May 1, 2009. The IEP team met on June 12, 2009, to develop an annual IEP. Between May 1 and the end of the district’s regular school year in June, the student continued to receive services from the private school in accordance with the expired IEP. The district acknowledges it did not timely conduct an annual review of the student’s IEP. IEP documentation from the June 12 meeting provides for ESY programming between June 15 and August 31, 2009, which the student is currently receiving, and indicates another meeting would be scheduled to complete the IEP and determine the student’s 2009-2010 school year schedule. As of the date of this decision, a meeting to complete the student’s IEP has not yet been scheduled.

The district is directed to schedule and conduct an IEP team meeting to complete the student’s IEP. By August 31, 2009, the district will submit documentation to the department that the student’s IEP has been completed. The documentation must include the team’s consideration of, and decision regarding, the student’s need for ESY programming during the IEP’s effective dates. During the IEP team meeting, the district will also consider whether additional services are needed because of the district’s failure to timely review and revise the student’s IEP in May and early June 2009. In addition, within 30 days of the date of this decision, the district must submit a proposed corrective action plan to ensure all student IEPs are reviewed annually and, when an IEP team determines ESY services are needed, IEPs include a clear statement of the amount, frequency, and duration of ESY services to be provided.

This concludes our review of this complaint.

//signed CST 8/4/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy