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IDEA Complaint Decision 13-039

On July 1, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Boyceville Community School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year, properly developed and implemented an individualized education program (IEP) for a student with a disability, properly made changes to the student’s IEP, properly determined extended school year (ESY) services, provided ESY services by a properly qualified teacher, and properly responded to a parent’s request for pupil records.

Properly developed and implemented an IEP for a student with a disability

An IEP is a written statement for a student with a disability that is developed, reviewed, and revised during an IEP team meeting. When an IEP team develops an IEP for a student, the IEP team must consider the strengths of the student, the concerns of the child’s parents for enhancing the education for their child, the results of the most recent reevaluations of the student, and the academic, developmental, and functional needs of the student.

On February 28, 2013, the IEP team met to develop an IEP that addressed the student’s unique needs and considered all the required information based on the child’s needs. The parents attended the meeting and stated concerns specific to the child’s slow growth in the area of reading. The IEP team considered the concerns and information provided by the parents. The IEP in effect during the 2012-13 school year detailed the student’s specific difficulties, successes, and unique needs related to reading. The IEP team developed goals related to reading, and included specialized instruction and academic support for reading in the regular education environment, daily phonics instruction in the special education environment, and supplementary aids and services related to reading. The district provided progress reports that demonstrated progress toward meeting all the annual goals. The district properly developed the student’s IEP to address the student’s unique needs related to reading during the 2012-13 school year.

The IEP for the 2012-13 school year includes related services of assistive technology specific to iPad usage and occupational therapy. The district provided the occupational therapy per the IEP. However, the amount and frequency for the iPad usage was not clearly specified in the IEP. It was written “as needed in all classes.” The student’s parents believe the iPad was to be used for communication and academic support at all times during the school day. The school staff interpreted this provision differently. The amount of services to be provided must be stated in the IEP so that the level of the local education agency’s (LEA’s) commitment of resources will be clear to the parents and other IEP team members. The amount must be appropriate to the specific service, and stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP. The frequency and amount of services regarding iPad usage is not stated in a manner that can be understood by all involved in developing and implementing the IEP.

Supplementary aids and services are included in the IEPs in effect for the 2012-13 school year. They included, among others, larger print materials, the option for the student to take a non-graded, alternate spelling test, or an oral spelling test.  The district acknowledges that these items were not provided.

Properly made changes to the student’s IEP

In making changes to a child’s IEP after the annual IEP team meeting for a school year, the parent of a child with a disability and the district may agree not to convene an IEP team meeting for the purposes of making those changes and instead may develop a written document to amend or modify the child’s current IEP. The student’s IEP in effect at the beginning of the school year specified that the district would use a specific literacy curriculum. On November 28, 2012, the district sent notification to the parents of a change in the student’s reading curriculum. The parents did not agree to making this change without an IEP team meeting. Since the student’s IEP specifies a specific curriculum, the district did not follow the required procedures when changing the IEP.

Properly determined and provided ESY services

Individualized determinations about each child’s need for ESY services are made through the IEP team process. If the IEP team determines the child requires ESY services in order to receive a free and appropriate public education (FAPE), they must include a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services in the child’s IEP. The school district contacted the parent after the February 28, 2013 IEP team meeting to add ESY services to the 2013-14 IEP. The parent agreed that the student would benefit from ESY services. However, there was no discussion of the type and amount of services that would be provided. Upon receipt of the revised IEP, the parent did not agree with the ESY services. The changes to the IEP regarding ESY services were not made through an IEP team meeting or specifically agreed upon by the parent. The district and the parent ultimately agreed through mediation on the ESY services to be provided.

The ESY services specified that the student would receive two hours a day of reading, writing, and phonics instruction by a school staff member. The school staff member assigned to provide the ESY services did not have a special education license. Special education services must be provided by properly licensed special education teachers. A non-special education licensed staff may work under the direct supervision of a licensed special education teacher to support the implementation of a student’s IEP. There must be sufficient contact between the special education teacher and the non-licensed special education teacher, 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 ESY services were provided by non-special education licensed staff and were not directly supervised by a licensed special education teacher. The district did not provide required special education ESY services utilizing properly licensed teaching staff.

Properly responded to a parent’s request for pupil records

A school district must permit parents to inspect and review any educational record relating to their children that are collected, maintained, or used by the district. The right to inspect and review education records includes the right to request that the district provide copies of the records if failure to do so would effectively prevent the parent from exercising the right to inspect and review the records. The school district must comply with a request without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days after the request has been made.

On May 10, 2013, the parent requested a copy of the student’s benchmark assessment. The assessment had not been scored, and when completed on May 28, 2013, the district immediately provided the parent with the requested results. The parents also requested progress reports from the district on June 20, 2013, and the district provided the documents on July 1, 2013. Under the facts of this case, the district properly responded to the parent’s requests for pupil records. 

Within 30 days of the date of this decision, the district must convene an IEP team to review the student’s IEP so that the frequency and amount of services and supports are stated in a manner that can be understood by all involved in developing and implementing the IEP and to address the changes in curriculum. In addition, the team must determine whether compensatory services are required due to the district’s failure to implement the student’s IEP and properly provide ESY services. The district must submit a copy of the IEP to the department within ten days of the IEP team meeting.

In addition, within 30 days of this decision, the district must submit a corrective action plan to ensure that the frequency and amount of services are clearly written, changes to an IEP are properly conducted, IEPs are implemented as written, ESY is properly determined, and special education is provided by appropriately licensed staff.

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 8/21/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support