On January 20, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the School District of New Berlin. A copy of the complaint is enclosed. This is the department’s decision regarding this complaint. The issues are whether the district, during the 2016-17 school year, properly determined whether a student with a disability requires extended school year (ESY) services and properly considered whether the student needed related services of occupational (OT) and/or physical therapy (PT).
ESY services are special education and related services required by the student’s individualized education program (IEP), and provided beyond the school term. A school district is required to provide ESY services to a student when the student requires such services to receive a free appropriate public education (FAPE). In determining whether ESY is required, the IEP team should consider multiple factors including the likelihood of regression and the recovery time from this regression. The primary issue is whether the progress the student made during the regular school year will be significantly jeopardized if ESY is not provided during the summer. If the IEP team decides the child requires ESY services, the team must include a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services in the student’s IEP. The ESY services must be tailored to the unique needs of the student and may not be based solely on the availability of services during the summer.
OT and PT are considered related services under federal and state special education law. Related services are transportation and such developmental, corrective, and other supportive services required to assist a student with a disability to benefit from special education. OT and PT are provided by qualified staff. If a student is suspected to need OT or PT, the district must initiate a reevaluation, and the qualified therapy staff must be included on the IEP team.
The student’s IEP team met on November 21, 2016, to complete a reevaluation, develop the student’s annual IEP, determine the student’s annual placement, develop a statement of transition goals and services, and to consider the need for compensatory services. Consideration of OT and/or PT was not included as a purpose of the meeting. The team considered whether the student required ESY services, but determined there was insufficient data at the time of the meeting related to the student’s annual IEP goals to make a determination. The district did not improperly determine the student’s need for ESY at the time of the IEP meeting. The district has indicated they will offer to conduct an IEP team meeting to consider whether the student needs ESY services based on current progress information and data.
Prior to the IEP team meeting, the student’s parent expressed a desire for the district to consider providing the student a specific type of therapy to address reduction of the student’s visual fatigue. However, the district was not aware the parent wished to discuss the school-based OT as a potential provider of the specific service. At no point during the review of existing data or other parts of the evaluation process prior to the meeting did the team determine whether assessment by an occupational therapist or a physical therapist was necessary as part of the student’s evaluation. During the meeting the student’s parent presented information about the specific requested therapy to address visual fatigue, including examples of the therapy being provided by school-based occupational therapists in other states. The IEP team discussed the parent’s request, determined the specific service is a medical service and rejected the parent’s request. The team also discussed the student’s handwriting, and discussed whether an OT assessment would be appropriate in this area but rejected that option. The team determined the IEP includes a variety of assistive technologies and supplementary aids and services designed to address disability-related needs related to handwriting and visual fatigue. The parent raised the possibility of the student needing PT during the course of the meeting. The team discussed observations conducted by the orientation and mobility specialist of the student and determined the student is able to safely navigate and access all parts of the school environment. The district documented the team’s consideration of these options and the reasons they were rejected in the IEP. The district did not improperly consider whether the student needed related services of OT or PT.
This concludes our review of this complaint.
//signed CST 3/21/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
Dec/mhr