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IDEA Complaint Decision 11-006

On January 31, 2011, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the New Holstein School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2010-2011 school year provided required special education services utilizing properly licensed teaching staff, provided transportation consistent with the students individualized education program (IEP), and properly revised the IEP.

The district was notified the student had transferred to the district on November 18, 2010. When a student with a disability transfers, the student’s new district must provide a free appropriate public education (FAPE) to the student, including services comparable to those described in the child’s IEP from the previous agency, until the district either adopts the student’s IEP from the previous district or develops and implements a new IEP. In this case, the new district provided comparable services to the student upon enrollment until an IEP team meeting was held to review and revise the IEP on December 6, 2010.

The parent indicated the student received special education services exclusively from a teacher’s aide and no appropriately licensed special education teacher provided services when the student’s special education teacher left for maternity leave. A district must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department. Special education aides may work under the direct supervision of a licensed teacher to support the implementation of a student’s IEP. There must be sufficient contact between the special education teacher and the aide, and between the teacher and the student, to enable the teacher to plan instruction, diagnose educational needs, prescribe content delivery through classroom activities, and assess student learning. In this case, the student had daily contact with the student’s special education teacher. The student’s IEP was implemented by the licensed special education teacher and at times, one of two licensed special education aides operating under the supervision of the special education teacher. The student’s special education teacher left for maternity leave on December 21. The student’s last day of attendance in the district was December 22. An appropriately licensed substitute filled in for the special education teacher while on maternity leave. The district utilized appropriately licensed staff to implement the student’s IEP.

In the complaint, the parent asserts the district did not provide transportation in accordance with the student’s transfer IEP. The parent believed the IEP called for the student to attend school for the full school day and for the driver to pick up and deliver the student “door to door”. The parent asserted the district failed to pick up the student on some mornings and dropped the student off early, before the end of the scheduled school day. The student was brought to school by his parent and began attending on November 22. The district began providing specially designed transportation to the student on November 23. The IEP from the student’s previous LEA called for specially designed transportation to be provided between home and school on a shortened school-day schedule. The district did not understand the IEP to require the student to be walked from the van to the door, and the parent did not mention this to the district prior to filing the complaint. The student’s schedule was modified to allow the student to spend increased time in school and to reflect the district’s regular early release schedule for all students. The student’s school day was shortened by 15 minutes to accommodate the special education bus schedule. These arrangements were reviewed with the parent by district staff.

For the first few weeks of attendance, the student did not consistently come out of the house when the van arrived. On these occasions, the parent was called. On several occasions, the parent said the student was ill and would not be attending or had overslept and would be brought to school later. Several times, the driver had to wait more than 20 minutes before the student either came out of the house or was notified the student would not be riding on the van that day. At the end of the first three weeks of the student’s attendance, the district notified the parent that staff would no longer call the parent when the student did not come out of the house on time and the driver would wait five minutes after the designated pick-up time and then leave. This was consistent with the district’s policy for other students receiving specially designed transportation. During the next week, the parent called the school three times and informed the school the van had not come. The van driver, though, had arrived, waited and left in accordance with the described procedure. The student’s enrollment in the district ended at the end of that week.

Upon transfer, the new district provided comparable services to the student, including special education services and specially designed transportation comparable to those included in the prior district’s IEP. The student’s IEP was reviewed and revised on December 6, 2010. The parent attended the IEP team meeting on December 6. However, while the new district continued to provide for a modified schedule upon transfer, the student’s school day was shortened by 15 minutes to accommodate the district’s bus schedule. There is no evidence the student’s school day was reduced based on the student’s unique needs. Modifying a student’s school day for reasons other than a disability related need is not appropriate. The student is no longer enrolled in the district so no student specific corrective action is required. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan (CAP) to ensure any modification of a student’s schedule is based on the student’s unique disability related needs and not based on scheduling concerns.

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 3/29/11
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy