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IDEA Complaint Decision 11-026

On July 1, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the West Bend School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2010-11 school year:

  • Scheduled an IEP team meeting at a mutually agreed on time;
  • Timely responded to a parent’s request for an individualized education program (IEP) team meeting;
  • Properly implemented the student’s IEP; and
  • Properly responded to a parent’s request for an individualized education evaluation (IEE).

On January 19, 2011, an IEP team meeting was held for the purpose of evaluation including determination of eligibility, initial or annual IEP development and development of a statement of transition goals and services. The IEP developed on January 19, 2011, listed a projected date of implementation of February 9, 2011. The student and the parent were invited to the meeting, but neither attended. The complainant, who is the student’s grandparent, contends the district did not schedule an IEP team meeting at a mutually agreed on time, stating the parent was not available during the day due to work issues and could only meet early in the morning or late in the afternoon outside the school day. The grandparent states the district said the IEP team meeting could only be held during the school day. The district indicated it was the grandparent’s schedule which was at issue. The district indicated the parent said the district could proceed without her, but the parent does not recall saying it.

Each public agency must take steps to ensure that the parent of a student with a disability is present at each IEP Team meeting or are afforded the opportunity to participate, including notifying the parent of the meeting early enough to ensure the parent will have an opportunity to attend and scheduling the meeting at a mutually agreed on time. A meeting may be conducted without parent participation if the school documents three good faith attempts.

The district documented three attempts to involve the parent in the IEP team meeting: a telephone conversation on December 17, 2010; a telephone conversation on December 20, 2010; and a written invitation sent on December 29, 2010. The parent acknowledged there were several calls from the district to set up a mutually agreed on time but there was no agreement due to the parent’s conflicts with work schedules, only allowing early mornings or late afternoons outside the school day as a possibility. The Office of Special Education Programs (OSEP) in a letter to Thomas, dated June 3, 2008, stated the Individuals with Disabilities Education Act (IDEA) does not require school districts to schedule meetings outside of the regular school day, and it is not unreasonable for districts to schedule IEP team meetings only during regular school hours. The district properly afforded the parent an opportunity to participate in the IEP team meeting.

Shortly after the January 2011 IEP team meeting, the parent requested a meeting and did not indicate she wanted an IEP team meeting. The district held several meetings to address the parent’s concerns after the January 2011 IEP team meeting. The district also conducted another IEP team meeting on April 7, 2011, per the parent’s request. The district timely responded to the parent’s request for an IEP team meeting.

The IEP must include a statement of special education and related services and supplementary aids and services to be provided to the student to enable the student to be involved in and make progress in general education curriculum. Annual goals on the IEP were to increase both organizational and self-advocacy skills. Special education services included: monitoring in academic classes and a specialized study hall to address organization and academic progress. The IEP stated monitoring was to be provided a “minimum of 5 minutes per quarter for each academic class.” Supplementary aids and services included: long-term projects to be broken down into parts, as determined between student, classroom teacher and IEP coordinator, extended time to complete projects up to seven days, extended time to complete daily assignments up to four days, sending an email to the grandmother at the end of each week detailing missing assignments and oral retesting of short answer and essay questions on assessments.

For each special education service and supplementary aids and services the IEP must state the amount and frequency, location and duration. Statements describing the amount and frequency of special education services and supplementary aids and services to be provided as “a minimum of 5 minutes per quarter for each academic class,” “as determined between student and teacher” or for “up to seven days” do not make clear the district’s level of commitment of district resources and do not clearly describe the circumstances under which the service will be provided. Although district staff implemented the supplementary aids and services, because of the lack of clarity in the IEP, there is disagreement between the district and the parent as to whether they should have been provided more frequently.

A parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the district. If a parent requests an IEE at public expense, the district must, without unnecessary delay either file a due process complaint to request a hearing to show its evaluation is appropriate or ensure an IEE is provided at public expense. Upon receiving a request for an IEE, the district must inform the parent about where to obtain an IEE and inform the parent of the district’s IEE criteria. On April 18, 2011, the district sent an email stating the request for an IEE was received by the district, and provided a copy of the district’s IEE criteria to the grandmother. However, the district did not inform the parent about where to obtain the IEE. The student is currently in the process of receiving an IEE at district expense.

Within 15 days of the date of this decision, the district must submit a corrective action plan to ensure all staff understand how to describe amount and frequency of special education services and supplementary aids and services in the IEP, and provide complete information when an IEE is requested. The district must also reconvene the student’s IEP team within 30 days to specifically address how to clearly describe the amount and frequency and supplementary aids and services in the student’s IEP.

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/SJP 8/30/11
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy