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IDEA Complaint Decision 11-044

On November 2, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2010-11 school year:

  • Properly considered concerns and information provided by the parents;
  • Properly determined placement for a child with a disability; and
  • Properly provided prior written notice in denying the parent’s request to change placement.

An individualized education program (IEP) team meeting was held on November 2, 2010, for the purpose of developing an annual IEP and determining placement for a child with speech and language and other health impairment disabilities. In developing each child’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. The mother attended the meeting and expressed concerns for her child’s need to be taught individually in a separate setting for reading, math, language arts, speech and language, and occupational therapy. She requested no other children be present in the separate setting due to her concerns for the student’s inability to follow directions and attend while other children are present in the regular education classroom. The mother’s concerns were documented in the student’s IEP. There were extensive discussions at the IEP team meeting regarding this issue which lasted over three hours. The district proposed more special education services and support in a regular education setting with same age peers as being necessary for the child to receive a free appropriate public education (FAPE) in the least restrictive environment. Special education and related services included math, reading, and language arts in both the regular education and special education settings, occupational therapy in the regular education setting and speech and language services in the special education setting. The district believed consensus had been reached regarding the IEP at the end of the IEP team meeting.

On November 5, 2010, the mother requested another IEP team meeting. On November 9, 2010, another IEP team meeting was held for the purpose of reviewing and revising the IEP and determining placement. The mother attended the meeting. During this meeting, the mother again expressed concerns regarding the child’s current placement. The mother again requested the child receive one on one instruction from a teacher in a special education setting with no other children present. The issue was again discussed at the November 9 meeting. The IEP developed on November 9, 2010 remained the same as the IEP developed on November 2, 2010.

Parents participate with school personnel as an IEP team participant, and the IEP team must consider the parents’ concerns and the information they provide regarding their child in developing, reviewing and revising IEPs. The IEP should work toward consensus, but the district has the ultimate responsibility to ensure the IEP includes the services that the child needs in order to receive FAPE. The district properly considered concerns and information provided by the parents and properly determined placement for the child.

At both the November 2 and November 9, 2010, meetings the parent requested a change in placement. Prior written notice must be provided whenever a district refuses to change the educational placement of the child. The notice must include a description of the action refused, an explanation of why the district refused to take the action, and description of each evaluation procedure, assessment, record, or report the district used as a basis for the refused action. At both IEP team meetings, the parent continually requested a more restrictive placement for the child. The determination and placement page of the IEP did not document this as an option that was considered, the discussion or the reasons the option was rejected. Alternatively, the district did not provide the parents with a Notice of Response to an Activity in response to the rejection of this option. The district did not properly provide prior written notice in denying the parent’s request to change placement.

Within 30 days of the date of this decision, the district must submit a proposed corrective action plan (CAP) to the department for approval prior to implementation. The CAP must ensure special education staff understand how to document placement options considered and rejected and how to provide prior written notice in denying a parent’s request to change placement.

  • Properly developed measurable annual goals.

An IEP is a written statement for each child with a disability that includes a statement of measurable annual goals designed to meet the child’s needs that result from the child’s disability. Annual goals must be measurable and include a level of attainment and address the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum. Annual goals also include a description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports on the progress the child is making toward meeting the annual goals will be provided to the parents. Nine annual goals were included in the IEP in the areas of reading comprehension, writing, attending, math, fine motor and language. Each annual goal was measurable, addressed the child’s needs and included when and how the parents would be informed of progress. The IEP team meeting was held with the use of a computer and projector to allow all IEP team members, including the parent, to view the document as it was developed. The district properly developed measurable annual goals.

  • Properly implemented the IEP regarding addressing annual goals.

The IEP was first implemented on November 3, 2010. On November 3, 2010, the child attended a full day of school. Beginning on November 5, 2010, the mother made the child available for instruction for only partial days for art, music, and physical education. The mother only made the child available for special education services in the area of speech and language. The mother filed documents for home-based private education program (home school) to the department which were received on November 19, 2010. The parent withdrew the child from the district on November 22, 2010. The district sent letters dated November 22, 2010, and January 13, 2011, to the parents acknowledging the mother’s decision to home school the child. The district stated its willingness to work with the family to implement the IEP developed in November 2010 should the parents decide to reenroll the child in the district. During the limited time the student was enrolled in the school district, the district properly implemented the 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. You may contact Teresa Goodier, Special Education Team, at or (608) 267-2947 if you have any questions about this decision or for technical assistance.

//signed CST 12/19/2011
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy