IDEA Complaint Decision 17-079

On November 13, 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, beginning November 13, 2016;

• Properly determined and documented the need of a student with a disability for specialized transportation as a related service, and properly implemented the student’s individualized education program (IEP) regarding specialized transportation;
• Properly determined and documented the student’s needs regarding assistive technology, and properly implemented the IEP regarding assistive technology;
• Properly responded to the parent’s request for supplementary aids and services in the student’s IEP;
• Properly documented and implemented a shortened school day for the student;
• Properly developed appropriate annual goals in the student’s IEP;
• Properly conducted periodic reviews of the student’s IEP to determine whether annual goals were being achieved and revised the IEP, as appropriate, to address any lack of expected progress; and
• Properly determined a placement for the student in the least restrictive environment (LRE) appropriate to meet the student’s individualized needs.
• Utilized an appropriately licensed paraprofessional to provide special education services.

The IEPs relevant to the complaint were developed on October 14, 2016, March 23, 2017, and November 13, 2017.

Properly determined and documented the need of a student with a disability for specialized transportation as a related service, and properly implemented the student’s individualized education program (IEP) regarding specialized transportation.

When an IEP team determines a student needs transportation as a related service in order to benefit from the student’s special education, the transportation must be documented in the student’s IEP so that the extent of the service can be understood by all involved in developing and implementing the IEP.

The student’s IEPs include specialized transportation to and from school five days per week. The IEPs do not specify pick-up and drop-off times, or whether a paraprofessional will be present during transportation. During the 2016-17 school year, although the student’s IEP did not include it as a part of the student’s transportation service, a district paraprofessional was always present on the student’s transportation to and from school. Beginning with the 2017-18 school year, the district continued to provide transportation to and from school but did not assign a paraprofessional for morning trips. The parents raised concerns about the lack of a morning paraprofessional with district staff in September and the student’s teachers in October. Following discussion of the issue at an IEP team meeting in November, the district assigned a paraprofessional for the morning trip; however the student’s IEP was not changed to indicate this decision. The student’s IEPs did not reflect the actual services provided by the district and lacked the necessary details to ensure the extent of the student’s transportation services could be understood by all involved in developing and implementing the IEP.

Properly determined and documented the student’s needs regarding assistive technology, and properly implemented the IEP regarding assistive technology.

Each student’s IEP team must consider whether a student needs assistive technology devices and services. When the IEP team determines a student needs such devices or services, the IEP team must ensure the provision of them is specified in the student’s IEP. The devices and services must be documented in the student’s IEP so they are understood by all involved in developing and implementing the IEP.

Due to the student’s disability, the student is currently unable to communicate verbally. For some time, the student’s parents, outside therapists, and school staff have been experimenting with various switches and eye gaze technology to determine which device or devices the student might best utilize to increase the student’s ability to communicate. Each of the student’s IEPs documented the need for assistive technology and stated the district continued to try different devices with the student. The student’s October 2016, IEP included a short-term benchmark specifying exploration of at least one new communication device per quarter. The student’s March 2017, IEP included an annual goal related to switch access. The student’s November 2017, IEP included an annual goal stating the student would be introduced to at least three different switches and explore four different access points. In interviews district staff reported that they had implemented the student’s IEPs as written regarding the provision of assistive technology devices and services. The district properly determined the student’s need for assistive technology devices and services and properly implemented the IEP regarding assistive technology.

Properly responded to a parent’s request regarding supplementary aids and services in the student’s IEP.

A student’s IEP team must specify supplementary aids and services that will be provided to enable the student to advance appropriately towards attaining their annual goals, to be involved and make progress in the general education curriculum, and to be educated and participate in activities with nondisabled students. In considering the need for supplementary aids and services, the IEP team must consider information provided by the parents.

The student is sensitive to bright light. The parents believe that the students IEP should include the use of a baseball cap and sunglasses as a supplementary aid and service to protect the student’s safety when the student participates in outdoor activities and other situations where bright light may be present. They have requested this be made part of the student’s IEP, but the district has not responded to this request, and the use of the cap and sunglasses has not been included in the IEP.

Properly documented and implemented a shortened school day for the student.

Students with disabilities must attend school for the same number of hours and minutes as non-disabled students, unless a student’s IEP team determines otherwise based on a student’s unique, disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. In addition, the IEP must include a plan for the student’s return to school for a full day as soon as possible. If a parent requests a change in the length of the student’s school day, the district must respond to the parent’s request. However, any changes to the regular school schedule must be made by the student’s IEP team, which includes the parent.

During the 2016-17 school year the student did not attend school for the full school day. The student arrived approximately one hour later than other students. The IEP team, including the parents, determined that a later arrival time was necessary based on the student’s disability related needs. However, the resulting shortened day was not appropriately documented in the student’s IEP. At the beginning of the 2017-18 school year the student resumed a full school day schedule. The student’s IEP in effect for the 2016-17 school year did not properly document the student’s need for a shortened day, and did not specify that his day would be shortened.

Properly developed appropriate annual goals in the student’s IEP.

A student’s IEP must include annual goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other needs that result from the student’s disability. In instances where a student participates in a curriculum aligned with alternate academic achievement standards, each annual goal must contain benchmarks or short-term objectives. Each annual goal must include a statement on how the child progress towards meeting the goal will be measured and when periodic reports on the progress the student is making towards the goal will be provided to the parents.

The student’s current IEP developed on November 13, 2017, identifies four areas of disability related need: self-help skills, mobility, pre-academic skills, and oral expression. These needs are consistent with the student’s present levels of academic achievement and functional performance. The IEP contains three goals which are aligned with the identified needs of the student. Each goal contains the required procedures for measuring progress and a statement of when periodic progress reports will be provided to the parent. One of the goals, identified as “self-help skills,” is not measurable as it lacks an expected level of attainment. Additionally, this goal does not include required benchmarks or short term objectives.

Properly conducted periodic reviews of the student’s IEP to determine whether annual goals were being achieved and revised the IEP, as appropriate, to address any lack of expected progress.

A student’s IEP team must meet at least annually to determine whether the annual goals for the student are being achieved. The IEP should be revised, as appropriate, to address any lack of expected progress towards the annual goals.

The student’s IEP of October 2016, contained four annual goals. The March 2017, IEP contains documentation that the IEP team reviewed the October 2016, goals. The documentation indicates the student had not met any of the goals and identified data or other information related to the student’s progress towards the goals. Based on the review, the IEP team identified two of the goals for revision. The IEP team developed two new goals for the student and continued a third from the prior IEP. When the IEP team met in November, the IEP team further revised the March goals. The district properly conducted periodic reviews of the student’s IEP and appropriately revised the IEP to address the student’s lack of expected progress.

Properly determined a placement for the student in the least restrictive environment (LRE) appropriate to meet the student’s individualized needs.

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. A student’s IEP team must determine the least restrictive environment for the student and ensure the IEP clearly describes the extent to which the student will not participate in the regular education environment. The IEP must clearly and consistently describe the extent of removal from the regular education environment so as to be understood by the student’s parents and those responsible for implementing the student’s IEP.

The student’s IEPs contains the following statement in the present levels section: “The student will spend as much time as appropriately possible in the regular education classroom during times he will be stimulated by activities. Those times will include free time, Recess, P.E., Science/Social Studies and special activities that will not take him out of therapy times, unless discussed with parents beforehand.” The student’s program summary indicates the student will be in the special education environment 240 minutes per week for specialized instruction and various therapies. The statement of the extent of removal from the regular education environment reads: “Due to [the student’s] communication needs and developmental delays and physical needs [the student] benefits from specially designed instruction in pre academic skills and needs to have an attendant with throughout the day to have [the student’s] basic needs taken care of.” The student’s parents are concerned that the student has not regularly been with his peers during lunch, music and special events. The IEP team discussed the required factors involved in the LRE determination and considered the parents’ concerns that the student spend as much time as possible with his peers who are not disabled. However, by using the phase “as much time as appropriately possible” the statements related to LRE in the IEP fail to clearly describe the extent of removal, and as a result the extent of the removal is not understood by the parents and those responsible for implementing the IEP.

Utilized an appropriately licensed paraprofessional to provide special education services.

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. Special education services must be provided by properly licensed special education teachers. Paraprofessionals holding a valid special education program aide license may support the provision of special education services under the supervision of an appropriately licensed teacher.

During the 2017-18 school year, the district assigned a staff member to work with the student as a paraprofessional. As of today’s date, the department has issued a license to the paraprofessional with an eligibility date of July 1, 2017. The district used an appropriately licensed paraprofessional to provide special education services.

Within 30 days from the date of this decision, the district shall conduct an IEP team meeting to discuss and clarify the student’s specialized transportation services, discuss and determine the use of cap and sunglasses as supplementary aids, to develop and appropriately document the annual goal identified as “self-help skills,” and to appropriately document the extent to which the student will be removed from the regular education environment. Within 10 days of the IEP team meeting, the district must send the department a copy of the revised IEP.

Within 30 days the district shall submit to the department a corrective action plan outlining the steps it will take to ensure all district staff responsible for the development of IEPs understand the requirements for shortening and documenting a student’s school day, responding to parent requests, and properly documenting IEP decisions with the required specificity.

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.