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IDEA Complaint Decision 15-022

On March 30, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues covering the 2014-15 school year are addressed below.

Properly implemented the student’s individualized education program (IEP) regarding the provision of physical education.

State statute requires physical education be available to all students. All students in grades 7 through 12 shall participate in the instructional program of physical education taught by a licensed physical education teacher. The degree to which a student with a disability may require specially designed physical education, or regular physical education with adaptations is an IEP team decision. The student’s 2014-15 class schedules indicate the student was assigned to specially designed education for the entire academic year. However, the student’s March 10, 2014 IEP indicated the student would receive regular physical education. The student’s February 18, 2015 IEP indicated the student would receive specially designed physical education with a projected date of implementation of March 5, 2015. The February 18 IEP did not specify the amount or frequency of specially designed physical education, nor clearly indicate the degree to which physical education would be provided in general or special education environments.

Between September 2, 2014, and March 27, 2015, the student participated two or three times weekly in physical education activities with students from the three comprehensive special education classes taught by a special education teacher who was not appropriately licensed. Between September 2, 2014, and March 5, 2015, the student was not provided regular physical education as specified in the student’s March 10, 2014 IEP. On March 27, 2015, a properly licensed physical education teacher began teaching the specially designed physical education specified in the student’s February 18, 2015, IEP. The district failed to properly implement the student’s IEP when they did not provide regular physical education in accordance with the March 10, 2014 IEP; and they did not provide specially designed physical education beginning March 5, through March 26, 2015. In addition, the district failed to document IEP team decisions regarding the amount, frequency, and location of specially designed physical education.

Provided required special education services utilizing properly licensed staff.

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 before engaging in duties of such a position. The local educational agency (LEA) must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department.

Between September 2, 2014, and November 24, 2014, a staff member worked with students as a special education program aide. The staff member was awarded a five-year special education program aide license valid July 1, 2007, through June 30, 2017. On November 24, 2014, the staff member was assigned to the position of special education teacher for the students. The staff member was awarded an emergency teaching permit valid November 1, 2014, through June 30, 2015, for early adolescence-adolescence cross-categorical special education. The LEA ensured professional teaching responsibilities were carried out by a special education teacher who was licensed by the department during the 2014-15 school year.

Properly enabled a student with a disability to participate in art, health, music, and computer classes.

At the beginning of each school year, the LEA must have in effect for each student with a disability an IEP that includes a statement of services to be provided for the student, to allow the student to be involved and make progress in the general curriculum, and an explanation of the extent to which the student will not participate with nondisabled students in regular education classes, and the extent to which the student will not be involved full-time in the general curriculum. A student must, to the maximum extent appropriate, be educated with his or her nondisabled peers. Although the student’s March 10, 2014 IEP includes a statement about the student’s participation in regular education classes and a specially designed curriculum or alternate curriculum for reading, math, language arts, and science; participation in art, health, music, computer classes, and other high school elective classes was not addressed. The student’s February 18, 2015 IEP states the student will participate in an alternate curriculum that is aligned with alternate achievement standards/Common Core Essential Elements in reading/English language arts, math, science, social studies, vocational skills, life skills, and social skills 360 minutes a day. The IEP team did not discuss or document the extent to which the student would participate in art, health, music, computer classes, or other high school elective classes for the 2014-15 school year, or include a statement of needed services to allow the student to be involved in these activities.

Properly implemented the student’s IEP regarding providing periodic reports on the progress the student is making toward meeting the annual goals.

Students in regular education at the high school receive four progress reports each year and two report cards: one in January and one in June. The student’s IEP includes a description of how the student’s progress toward meeting annual IEP goals will be measured and how and when progress reports will be provided to the parents. The student’s IEP, in effect between March 17, 2014, and March 5, 2015, states progress reports on three annual IEP goals would be provided with regular scheduled report cards and progress reports on one goal would be provided at the end of each trimester. A January 23 progress report on the three goals was provided to the parent. There is no evidence trimester progress reports were provided to the parent on the additional goal. The student’s IEP, in effect starting March 5, 2015, states progress reports on four annual IEP goals would be provided with regular scheduled report cards, and progress reports on one goal would be provided at least once per semester. On April 30, 2015, a progress report on one goal was sent to the parent. Documentation provided by the parent and LEA demonstrates progress reports on each annual goal were not provided timely as described in the IEP. The LEA did not properly implement the student’s IEP regarding providing periodic reports on the progress the student is making toward meeting the annual IEP goals.

Within 30 days of the date of this decision, the LEA must submit a proposed corrective action plan (CAP) to the department to ensure all students in the comprehensive special education classes at the student’s current high school are provided physical education in accordance with their IEPs by a properly licensed teacher. Within 60 days of the date of this decision, the LEA must conduct an IEP team meeting for each affected student to determine compensatory services for failing to provide physical education by an appropriately licensed teacher and submit the revised IEPs to the department. In addition, the LEA must ensure the amount, frequency, and location of services are clearly described in the student’s IEP, progress towards goals is reported in accordance with the IEP, and IEP team discussions regarding the student’s participation in regular education classes including participation in physical education, art, health, music, computer classes, and other high school elective classes are documented in the IEP. The LEA must submit to the department within 10 days from the date of the student’s IEP team meeting, a copy of the revised IEP that includes a determination of compensatory services, clearly documents IEP team decisions regarding the amount, frequency, and location of specially designed physical education, and describes the student’s participation in regular education classes including participation in physical education, art, health, music, computer classes, and other high school elective classes.

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 5/29/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd