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IDEA Complaint Decision 15-015

On March 4, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues covering the 2014-15 school year are addressed below.

Properly considered the use of positive behavioral interventions, supports and strategies to address the student’s behavior impeding learning, properly developed measurable annual goals, and properly included in the individualized education program (IEP) a statement of services and supports to enable the student to advance appropriately toward attaining the annual goals.

An IEP is a written statement for a student with a disability developed, reviewed, and revised during an IEP team meeting. Each student’s IEP must include a statement of the student’s present levels of academic achievement and functional performance, including how the disability affects the student’s involvement and progress in the general education curriculum; measurable annual goals designed to meet the student’s disability-related needs to enable the student to be involved in and make progress in the general education curriculum; a description of how progress toward meeting annual goals will be measured; and when periodic reports on the progress will be provided to the parent. Each student’s IEP must also include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff based on each student’s unique needs and an explanation of the extent, if any, to which the student will not participate with nondisabled peers in the regular class and other school activities. IEP services must be stated in a manner clear to the parents and district staff who will be implementing the IEP. The complainant believed the IEP did not include appropriate behavior interventions; the student’s goals were not based on the student’s actual performance, were not appropriate for the student’s grade, and would not reduce the gap between the student’s performance and grade level expectations; and the IEP services were not helping the student achieve goals appropriate for the student’s grade.

The student’s IEP in effect at the beginning of the 2014-15 school year was developed on November 11, 2013. The IEP team discussed the student’s academic and functional achievement, including the student’s behavioral needs, and addressed them in the IEP. The description of the student’s present level of academic achievement and functional performance included information about the student’s achievement, behavior, and behavioral needs. The student’s current levels of performance in reading and math were clearly stated and represented achievement significantly below grade level expectations. The IEP included several annual goals related to achievement and two annual goals related to behavior. The goals were measurable and included levels of attainment based on the student’s current level of performance. The goal related to classroom behavior and functioning was measurable and related to the student’s disability related needs. Behavior is identified as a factor that impeded learning. The statement of positive behavior interventions, strategies, and supports referenced the functional behavior assessment (FBA) and behavior intervention plan (BIP). The BIP in effect at the start of the year listed positive behavior interventions, strategies, and supports including sensory stimulation, redirection, breaks, printed schedule, reduced assignments, and the use of a token economy plan. However, it was unclear under what conditions or how often a number of these strategies were to be used. For example, the BIP indicated a token economy plan would be provided “as needed if a separate plan has been prepared.” Terms such as “as needed” were not clear and did not provide the required specificity for implementation of the positive behavior interventions, strategies and supports noted in the IEP.

On September 17, 2014, an annual IEP team meeting was held to review and revise the student’s IEP. The IEP went into effect on September 22, 2014. The IEP provided updated information about the student’s academic achievement and functional skills, including behavior, in the statement of present level of academic achievement and functional performance. The statement reflected slow progress in some areas and limited, if any, progress in reading and math. The IEP also documented the staff’s and parent’s concerns about the student’s behavior and the parent’s desire for the student to participate in general education classes and to receive instruction in handwriting. It was recommended that the student continue to use technology to assist with handwriting, and accommodations and prompts be provided, in consultation with the occupational therapist, to address handwriting needs. Staff believed the student’s anxiety and behavior significantly interfered with the student’s ability to function in general education classes and that the student required modified curriculum to make progress. The decision made by the IEP team was to include the student in general education classes for two hours each day with aide support and provide reading, math, language, and social skills instruction in special education environments. The amount, frequency, and location of these services were clearly stated in the IEP.

Behavior was identified as a factor that impeded learning. The statement of positive behavioral interventions, strategies and supports noted an FBA had been conducted and a BIP was in place. The statement also noted the student uses a daily behavior plan and sensory supports may be helpful, although it was not clear under what conditions such supports would be provided. The BIP was attached to the IEP and was left unchanged from the prior IEP. The IEP included revised annual goals related to achievement and one revised goal related to behavior. The goals were measurable and related to the student’s present level of achievement and functional skills. Information provided by the parent and the district confirms the IEP team did not finish addressing the student’s behavior and did not develop an updated BIP during the September 17 meeting. Another meeting was scheduled for September 25, 2014, to continue the discussion about the student’s behavior, but was cancelled and was not rescheduled. The next meeting held to review and revise the student’s IEP to address the student’s behavior needs occurred on March 3, 2015. The meeting was continued on March 19, 2015 and a revised IEP was completed .

Between September and March there was ongoing conversation between the parent and district staff, including parental requests for an observation and evaluation by outside specialists to address behavior which deteriorated between September and November. The district arranged for such observations. In response to the changes in the student behavior, as well as information provided by an outside specialist, a number of changes were made to the behavior interventions, strategies and supports used with the student and to the student’s specially designed transportation and the student’s schedule. The schedule changes included decreasing the amount of time the student was expected to spend in general education classes. There was measurable improvement in the student’s behavior in November and December. However, following winter vacation, the student’s behavior issues increased significantly, the student stopped attending general education classes, and replacement curriculum was provided in the special education setting. The changes to the student’s program between September and March were made outside the IEP team process and the student’s IEP was not revised.

The district held IEP team meetings on March 3, March 9, and March 19, and revised the student’s IEP. The revised IEP was implemented on March 23, 2015. The revised IEP included changing the student’s placement to an off-site setting. The IEP currently in effect includes all required components. The student’s IEP in effect between September 22, 2014, and March 23, 2015, did not include properly developed behavioral interventions, strategies and supports. The IEP team should have been reconvened no later than November, when significant changes were made to the behavioral interventions, strategies and supports and to the amount of time the student was expected to spend in general education environments. No additional student specific correction is required as the student’s IEP has subsequently been properly revised.

Provided required special education services utilizing a properly licensed teacher.

The complainant asserts the student primarily received special education services from a special education aide in a separate room, and the student’s special education teacher was not properly qualified to work with the student. Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. The district must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department. A special education aide’s role is limited to working under the direct supervision of a licensed teacher to support the lesson plans of the teacher, provide technical assistance to the teacher, help with classroom control or management, and perform other duties as assigned.

The student’s schedule varied during the school year. At the start of the year, the student was expected to attend several general education classes with aide support. As the year progressed, the student attended such classes less frequently and modified curriculum materials were developed by the student’s special education teacher. At the time of the complaint, the student’s primary learning environment was the special education environment. This setting consisted of adjoining resource rooms. The teacher, aides, and students utilized both spaces for instruction and independent work. The student sometimes received instruction in one room and sometimes in the other. The teacher moved from one room to the other, providing direct instruction and monitoring the student’s progress. When the teacher was not directly working with the student, the student’s aide worked with the student under the supervision of the teacher. The special education teacher designed instruction for the student, reviewed the student’s work, and developed lesson plans. The special education teacher had direct contact with the student, evaluated the services provided by the aides, and assessed the student’s learning. All special education teachers and aides who provided or supported the provision of special education services to the student held appropriate and valid department licenses. In addition, the student’s special education teacher had additional training specific to the student’s impairment area and the special education teacher and the aides who worked with the student received additional training by an outside specialist in November 2014. The district provided special education services utilizing properly licensed staff.

Properly responded to a parent’s request for an IEP team meeting.

A parent may request an IEP team meeting at any time, and a district should respond to any reasonable request from a parent for a meeting to review the student’s IEP. Following cancellation by the district of the September 25, 2014 meeting, the parent requested the meeting to be rescheduled several times. Correspondence from the district to the parent on September 23, 2014, documented the district’s decision not to hold another IEP team meeting until one was required to address matters such as a change in placement. The correspondence provided reasons for the decision and a reminder of the parent’s rights should the parent disagree. Subsequently, when asked, the parent was told an IEP team meeting would be scheduled after the observations were completed by the outside specialists whom the parent had requested. One outside specialist observed the student in October, and then met with staff on November 3, 2014. The student’s program was substantially modified following this date, as previously described, outside of the context of an IEP team meeting. The other observation requested by the parent by staff from a potential alternative placement was completed in December with a report shared in January 2015.

District staff attempted to schedule a meeting in January. District staff had difficulty scheduling the meeting because of the need to coordinate the parents’ and outside specialist’s schedules. The IEP team meeting was held on March 3, 2015, and continued on March 9, and March 19. A revised IEP was finalized on March 19, and the student’s placement was changed. Even taking scheduling difficulties and the parent’s request for outside specialist involvement into consideration, the district’s delay in conducting an IEP team meeting was too long, particularly since substantive changes had been made to the student’s program outside of the IEP team meeting process. The IEP team will meet again before the end of the school year to review the student’s IEP and placement for the coming year. No additional corrective action is required to address this case-specific violation.

Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure when behavior is a factor affecting student learning, IEP teams properly document student specific positive behavior interventions, strategies and supports and timely meet to review and revise IEPs when changes to a student’s services are needed. 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 5/1/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support