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IDEA Complaint Decision 10-043

On June 4, 2010 (form dated June 1), the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the School District of Maple. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2009-2010 school year, properly changed the student’s individualized education program (IEP), properly implemented the student’s IEP regarding the provision of neutral off-site instruction, and properly changed the student’s placement.

On September 29, 2009, an IEP team determined the student was eligible for special education services, and an IEP was written. During February 2010, the IEP team met two times to review the student’s academic and behavior progress. On March 29, after reviewing the student’s academic and behavior progress, the IEP team agreed to provide special education instruction in social studies and science during part of the school day. The IEP states the student will receive instruction six hours per week at an off-site setting. During the remainder of the school day, the student participated in general education and special education at the high school setting. The district properly changed the student’s IEP to reflect the addition of special education services at the off-site setting.

A district must ensure that the student’s program complies with state requirements, including that professional teaching responsibilities be carried out by or directly supervised by a special education teacher who is licensed by the department. Direct supervision means regular, continuing interaction between the special education teacher and the assistant, which includes time to evaluate the services provided. There must be sufficient contact between the special education teacher and the assistant, and between the special education teacher and the student, to enable the teacher to diagnose education needs, prescribe teaching and learning procedures, and evaluate the effects of teaching.

The instruction at the off-site setting was provided by a tutor, not a licensed special education teacher, and there was not adequate direct supervision provided by the special education teacher. Although the tutor was in contact with the special education teacher on a daily basis through phone and or email, and face to face on a weekly basis, there was not sufficient contact between the special education teacher and the student. The district did not properly implement the student’s IEP with regard to providing special education instruction in the neutral off-site setting. Within 30 days from the date of this decision, the district must conduct an IEP team meeting to determine whether compensatory services are required because of the failure to properly implement the student’s IEP, and must submit to the department a copy of the student’s IEP documenting consideration of compensatory services. Within 30 days from the date of this decision, the district must also submit a corrective plan to ensure that special education services are properly provided.

The parents also maintain the district did not properly change their child’s placement with regard to a request on May 27, 2010, to stop the off-site services. On May 27, the special education teacher called the parents to discuss their concerns about changing the student’s schedule. A written invitation for an IEP team meeting was sent to the parents on June 3. On June 9, an IEP team meeting was held to discuss the student’s placement for the remainder of the year and to plan for the following school year. The district properly changed the IEP with regard to the parent’s request to stop off-site services, and placement was offered at the high school.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 8/3/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy