On October 24, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2017-2018 school year:
- Properly implemented the individualized education program (IEP) of a student with a disability regarding adult support at lunch and recess, speech and language therapy, and physical therapy;
- Properly provided the parents of a student with a disability the opportunity to meaningfully participate in determining the student’s placement; and
- Improperly removed a student with a disability from the student’s current placement through suspension.
Properly implemented the individualized education program (IEP) of a student with a disability regarding adult support at lunch and recess, speech and language therapy, and physical therapy.
A public school district must fully implement each student’s IEP by providing all services as described in the student’s IEP. The student’s IEP in effect at the beginning of the 2016-17 school year specifies the student will receive supplementary support for safety, following routines, and staying on task during lunch and recess through April 2018. The parent is concerned adult support was not provided due to a fall the student sustained during recess on September 6, 2017, and because staff reported during parent teacher conferences that the student was distracted during lunch. A paraprofessional is assigned to the student to provide one-on-one support during recess and lunch. During these times, the paraprofessional is in close proximity to the student and maintains a direct line of sight to the student. Three days a week, the student’s special education teacher is also present during recess to provide additional support for safety. Staff have received instruction in how to provide support for safety to the student. On the first day of school, September 5, the student’s special education teacher provided instruction in playground safety, including how to safely climb down from playground equipment. The next day at the end of recess, the student started climbing down a pole on a piece of playground equipment while the teacher was standing next to the pole. Before the student reached the ground, the student jumped off the pole, lost his balance and fell. The teacher immediately attended to the student to determine whether the student was injured. The teacher reported the incident to the parent that day in the daily communication notebook. Although the student jumped from the playground equipment, an adult was within several feet from the student when the incident occurred and was maintaining direct eyesight of the student.
A paraprofessional is with the student one-on-one during lunchtime as well. The building principal or a classroom teacher is also present. During the first month of school, the student became interested in a suspended wheel that was attached to the end of a cafeteria table at which the student sat during lunch. The student would lean over the bench and spin the wheel at the base of the table. Each time this occurred, the paraprofessional asked the student to sit up and the student complied. This continued for several weeks until the student was encouraged to sit in a location away from the wheel, but at the same table, and access to the distraction was removed. Although the student was distracted during lunch, an adult was several feet from the student and within direct eyesight of the student. Each time the student became distracted, the adult redirected the student to help the student stay on task during lunch. The student received supplementary support for safety, following routines and staying on task during lunch and recess, as specified in the IEP.
The IEP also specifies the student will receive 30 minutes a week of speech therapy in the special education classroom and another 30 minutes a week in the regular education classroom through April 2018. Documentation indicates speech and language services were provided twice a week as specified in the student’s IEP beginning September 5, 2017. The speech and language pathologist varied the times and groupings with other students during the first two weeks of school to determine the best time and grouping for the student. In a communication notebook used by the special education teacher to provide daily feedback to the parent, a speech therapy session is documented for the first time on September 28, “speech in the classroom during writing” and again on September 29, “had speech during library.” The inconsistencies between the teacher’s communication notebook and the documentation of the services provided are due to the fact that the teacher is not always present during therapy; however, speech and language therapy was provided as required by the IEP.
The student’s IEP also specified 30 minutes a week of physical therapy in the special education classroom through June 8, 2017, and 30 minutes a week of physical therapy consultation with the physical education teacher and kindergarten staff through October 2017. Physical therapy sessions with the student ended in June 2017. According to a monthly service summary, the therapist consulted with the student’s physical education teacher for 10 minutes prior to the start of the 2017-18 school year and again on September 28. The therapist provided direct services to the student on September 12 to review and recheck the student’s basic motor skills. During October, the therapist consulted with the student’s physical education teacher or special education teacher for approximately 10 minutes each week. The district did not provide 30 minutes a week of consultation as required by the student’s IEP.
On October 30, 2017, as documented on a notice of changes to the IEP without an IEP team meeting, the physical therapy consultations with school staff provided at the onset of the school year were extended beyond October 2017, until such time the student is reevaluated. However, this change was erroneously documented in the student’s IEP as 30 minutes of physical therapy (group or individual) each month in the special education classroom. Direct services were not provided as specified in the IEP, although the therapist observed the student multiple times since October, consultation with the teacher was provided. Within 30 days from the date of this decision, the district must conduct an IEP team meeting to determine whether compensatory services are required, and to clarify, if required by the disability related needs of the student, the frequency and amount of physical therapy services to be provided. Following the IEP team meeting.
Properly provided the parents of a student with a disability the opportunity to meaningfully participate in determining the student’s placement
During the May 26, 2017, IEP team meeting, the IEP team determined the student would attend XXXXX Elementary School beginning September 5, 2017. The parents attended the IEP team meeting and expressed their concern about changing the student’s location of services to a new elementary school since the student had experienced success at the elementary school the student attended during the 2016‑17 school year, and the student has difficulty transitioning to new settings. The parents were concerned the new school would adversely affect the student’s academic performance, social-emotional skills, and/or behavior at school. The IEP team considered the parents’ concerns and discussed providing transition supports to the student including visits to XXXXX Elementary School to meet next year’s teacher and potential classmates, creation of a book with pictures of the new school and staff, and visits from next year’s teacher during the 2016-17 school year. The IEP team believed with these supports the student would transition smoothly to the new school. XXXXX Elementary School is also the neighborhood school the student would attend if not disabled and all the student’s IEP services would be provided in the new school. Previously, special education services were not available at XXXXX Elementary School, but the district reallocated resources to provide special education services there beginning in the 2017-18 school year. The IEP team documented this decision and provided notice of placement to the parent on June 19, 2017. The notice included the options considered and the reasons why the previous school was not chosen as the student’s educational site for the 2017-18 school year.
Educational placement decisions are made by the IEP team during an IEP team meeting. To the maximum extent appropriate, students with disabilities are educated with nondisabled peers. Unless the IEP requires otherwise, the student is educated in the school that he or she would attend if nondisabled. During the May 26 IEP team meeting, the IEP team considered the parents’ concerns, provided additional supports to assist with the transition, and determined the appropriate placement was the school the student would attend if nondisabled. The district properly notified the parents of the options considered and why they rejected the parents’ request to educate the student in the previous school building. The district properly provided the parents of a student with a disability the opportunity to meaningfully participate in determining the student’s placement.
Improperly removed a student with a disability from the student’s current placement through suspension.
On September 13, 2017, the parent informed district staff of the intent to send the student to school wearing a GPS tracking device with the capacity for two-way communication. That day, the director of special education spoke with the parent by phone regarding the device. The director informed the parent that the student would not be permitted to wear the GPS device at school “without a conversation at an IEP meeting.” This was in part due to the fact that the device included two-way communication capability and the district wanted to protect the privacy of other students. On October 2, the parent spoke with the student’s special education teacher informing the teacher that the student was wandering out of the house. The teacher said that the student wanders in the classroom at times, but the student had never left the classroom or wandered away when on the playground. The teacher attempted to reassure the parent that staff are aware of the concern and watch the student at all times when outside. On October 24, the student wore the GPS device to school. When the device was discovered by school staff, the parent was called and informed the student could not remain at school as long as the student was wearing the device. Due to the parent’s concern the student might wander away from school grounds, the parent would not remove the GPS device from the student and the district suspended the student. On October 24, the parent was notified in writing of the disciplinary removal due to wearing a GPS device with listening capabilities on school grounds. The notice specified the student was removed to the student’s home until the student returned to school without the GPS device or until the IEP team convened to discuss possible use of the device. School attendance records indicate the student was suspended for a disciplinary removal due to GPS/listening device on October 24 for a half-day and three full days on October 25-27. The district scheduled an IEP team meeting on October 26 to discuss the use of the device, but the parents were not available and the meeting was rescheduled for October 27, 2017.
During the October 27 IEP team meeting, the parent shared concerns about the student’s possible elopement from school and requested the student be allowed to wear a GPS device while attending school and when taking neighborhood walks during physical education. District staff shared there has been no instances of the student leaving school grounds or classrooms, and the student has no opportunity to wander off school grounds as the student is always within close proximity of adult support. The IEP team reviewed a letter shared by the parent from the student’s physician. The letter stated the student has a history of wandering, particularly from home; suggested possible conditions that might trigger the wandering; recommended close and constant adult supervision; and to ensure safety, the physician stated that a GPS device is medically necessary for the student. In a letter dated November 2, 2017, the district provided notice of their response to the parent’s request that the student be allowed to wear the GPS device at school. The letter summarizes the IEP team discussion and states that it is the consensus of the IEP team since the student never demonstrated elopement at school, the GPS device was not necessary for the student to receive a free appropriate public education or to ensure the student’s safety. The IEP also includes adult support for safety. However, given the parents’ ongoing concerns, the district consented to allow the student to wear the GPS device as long as the two-way communication capability was disabled in order to protect other student’s privacy, and to include several school district staff in the GPS device notifications. The student returned to school wearing the GPS device with the two-way communication turned off.
Under IDEA, the purpose of our investigation related to this incident is to determine if the district improperly removed a student with a disability from his current placement through suspension, not to investigate the nature of the violation. Under state law, a student may not be suspended for more than five consecutive days unless a notice of an expulsion hearing has been sent. In this case, the district determined the student violated a code of school conduct and suspended the student as a result for a total of 3 ½ consecutive school days. When a student with a disability is removed for more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s individualized education program (IEP). Because the disciplinary removals did not exceed 10 cumulative school days, the district was not required to provide services. The district did not improperly remove a student with a disability from the student’s current placement through suspension.
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:BVH