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IDEA Complaint Decision 17-087

On December 7, 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 that complaint. The issues related to the 2017-18 school year between September 5 and December 7, 2017, are identified below.

Properly implemented the Individualized Education Program (IEP) of a student with a disability.

A school district must provide each child with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing the special education services specified in the student’s IEP. The complainant alleges the district failed to provide several components in the student’s IEP: direct adult supervision at school, transportation services, health related care services (burping, changing diapers and clothes, and feeding machine) including training of staff, physical therapy services including training of staff, specially designed physical education, field trip experiences, and written communications.

The student’s IEP in effect at the beginning of the 2017-2018 school year includes the following special education services: community experiences such as bowling, movies, restaurants for lunch, shopping, XXXXX, and the XXXXX two times per month; academic instruction concurrent with functional and adaptive skills one time per day; 405 minutes in a special education environment; speech and language therapy two times per week/ twenty minutes in a special education location. In addition, the special education service of specially designed physical education three times per week/thirty-five minutes in a special education location is documented in the IEP. The IEP includes the following related services: “occupational services one time per week/20 minutes; physical therapy services one time per week/20 minutes; school health services one time per day/10 minutes Pediasure added to bag, and he is disconnected when feeding is completed; school social work services one time per month/5 minutes on a consult basis; and transportation (wheelchair) two times per day/2 minutes direct adult-supervision for all health related needs and keeping the student repositioned for comfort and safety, getting on and off the bus (as well as during bus rides).” The IEP includes the following supplementary aids and services: access to visuals and augmentative forms of communication, mat table, supportive chair/feeder seat, tumble form wedge and ½ roll, and direct adult supervision for all health related needs, comfort and safety. The IEP contains the following modifications and supports for school personnel: consultation between staff, observation and training of nursing task by a nurse, physical therapy and occupational therapy, training to classroom staff on positioning and transfer training with the student present, and notes between home and school 5 times per week for 10 minutes.

The student’s annual IEP team meeting occurred on November 13, 2017. The IEP team reviewed the student’s progress toward achieving IEP goals and wrote new annual goals. Services were determined and services were revised. The special education service of community experiences and the related service of school social work were discontinued. The supplementary aids and services continued with the addition of assistive technology for pre and post assessments, and verbal and visual cueing for academic instruction. The program modifications or supports for school personnel “assistant material modifications and appropriateness” were discontinued. The other five services or activities continued with added clarifying description of services. The related service: “school health services one time per day/10 minutes Pediasure added to bag, and he is disconnected when feeding is completed” was revised to “services of school nurse one timer per NONE/ five minutes tube feeding occurs per RUSD policy and procedures and provider orders if requested to be given at school.” The service “notes between home and school five times per week for ten minutes” was revised to “communication between home and school five times per week for five minutes”.

The department has made the following determinations regarding implementation of the student’s IEP between September 5, 2017, and December 7, 2017, based on interviews with the parent, district staff, and review of documentation. The educational assistant hired to provide one to one direct adult supervision of the student was hired and in attendance and provided the student service every school day between September 5 and December 7, 2017. Between September 5 and December 7, the student was transported to and from school by either the parent or the district based on phone or email communication agreements between the principal and parent. On the days the district provided transportation a trained educational assistant, the physical therapist, or the principal rode the bus with the student to provide required services.

The health related care services were provided every day the student attended school by trained educational assistants, the special education teacher or school nurses. On August 30, a meeting was held with the student, parent, health services supervisor, two district nurses, physical therapist, occupational therapist, special education teacher, special education assistants, principal, assistant principal and a special education supervisor to discuss preparedness for the 2017-2018 school year. On September 13 and 26, district nursing staff provided training to the student’s special education teacher and educational assistants on both feeding and diapering. Student health care notes show the student’s feeding machine was disconnected on October 11, 12, and 20. The student’s feeding procedure requires continuous feeding. On October 31, when district staff became aware of documentation of the three disconnections the practice was stopped and the continuous feeding order was followed. A Student Medical Emergency Plan was developed on November 1 and signed by the parent on November 13, 2017. On November 1, there was discussion between the parent and school staff about the feeding machine bag being messy after being switched out by staff. On November 14, the feeding tube was untangled under the supervision of a district nurse. On November 20, the student’s feeding pump was changed from a “lock setting” to an “unlocked setting.” This most likely occurred when a school nurse was checking the feeding machine. On November 20, district staff restated no one is to touch the pump settings and medical orders for continuous feeding be followed and documented on a revised health care notes chart. On November 28, the g-tube med port opened up and air got in the line, while a district nurse was making adjustments the parent completed the task. All recorded incidents were thoroughly investigated by district staff and procedures are in place to ensure feeding orders are followed and other health care services provided correctly and documented.

The complainant also asserts on two occasions the student was not provided specially designed physical education services and was left behind in the classroom during physical education time. On November 1, the parent saw the educational assistant and student in the classroom without the other students who were about to proceed to their specially designed physical education class. At that time, the principal came to the classroom and the parent and student went to the principal’s office. No other occasion of failure to participate is documented. The student was provided special designed physical education as written in his IEP.

Physical therapy services were provided to the student, when he was in attendance and as stated in the IEP. On September 28, the physical therapist rode the bus on both the morning and afternoon bus routes as the student’s support instead of an educational assistant. On September 11 and October 12, the physical therapist rode the bus with the student to train an educational assistant. On August 30, a meeting was held with the parent and staff who would provide service to the student, and the physical therapist demonstrated one person transfer to staff. On September 5, the parent brought the student to school with his wheelchair. However, the parent needed to leave the school before additional training could be provided. On September 7, 11, and 26, the physical therapist provided training on lifting or transferring the student, and repositioning the student for comfort to staff who work directly with the student.

Between September 5 and November 13, the student was not provided the special education service of community experiences as described in the IEP. On September 22, 28, October 18 and 20, the student’s class went on 20-minute group walks in the neighborhood around the school. However, this activity does not match the description of the community experiences in the IEP.

In addition, the service of written communication was not described with sufficient detail. Although the special education teacher and educational assistant provided the parent a communication notebook, the notebook did not consistently contain information on all the areas the parent expected to receive information and the IEPs did not clearly define the communication service or the areas on which the parent would receive information. The student’s February 9, 2017, IEP was too ambiguous to be clearly understood by the parent and staff involved in implementing the IEP. The November 13, 2017, IEP continues to be ambiguous regarding this service.

Properly responded to parent’s request to conduct a meeting of the IEP team.

On or about mid-September, the parent requested a meeting regarding the student’s health related care services daily needs. On September 14, 15, 21, 27, October 23, and November 2, district staff communicated with the student’s parent attempting to find a mutually agreeable time and date for the student’s annual IEP team meeting. The student’s IEP team met on November 13, 2017. The district properly responded to the parent’s request, and conducted an IEP team meeting within a reasonable period time in this case.

Properly provided the parent of a student with a disability the meaningful opportunity to participate in an IEP team meeting.

On November 13, 2017, an annual IEP team meeting was conducted for the student. The parent attended the meeting with a parent advocate and an attorney. Parent concerns were documented in the IEP including concerns for the student’s health and safety, academic accomplishments, physical and occupational therapy needs and field trip participation. During the IEP team meeting, the team reviewed the student’s progress on annual goals and determined new goals and services. The parent participated in the discussion and review expressing concerns and suggestions for services. The finalized IEP reflected determinations made during the IEP team meeting based on input from the parent and other IEP team participants. The district properly afforded the parent meaningful opportunity to participate in IEP team meeting.

Provided special education using properly licensed and trained staff.

The student's IEP requires special education services related to the student’s disabilities. The parent alleges these services were not provided by a properly licensed special education teacher. The teacher providing the IEP services during the events giving rise to this complaint has a valid special education license. The educational assistant assigned to provide one to one assistance to the student including health related care services has a valid special education program aide license. In addition the special education teacher and all the educational assistants who provide service to the student have been provided training by the district’s physical therapist on August 30; September 7, 11, 12, 26; and October 12, and by district nurses on August 30, September 13 and 26, 2017. The teacher and one to one educational assistant are properly licensed to provide the special education services required in the student's IEP.

Properly developed the student's IEP regarding physical therapy.​

On November 13, 2017, the IEP team met to develop an IEP that addressed the student’s unique needs and considered all the required information based on the student’s needs. The parent attended the meeting and stated concerns specific to the student’s needs including sharing a doctor’s recommendation that the student receive speech, occupational and physical therapies every day at school. The district occupational therapist and physical therapist considered and discussed the doctor’s recommendation with the rest of the IEP team and explained how district staff addressed the student’s range of motion and comfort needs. The IEP team considered the concerns and information provided by the parent including information from the student’s doctor. The IEP team developed goals related to the student’s gross motor skills and positioning. The related services include physical therapy one time per week for twenty minutes. In addition, on the Determination and Notice of Placement the IEP documented the IEP team’s decision to deny the parent’s request for daily physical therapy, including providing the reasons and a description of factors relevant to the proposed action. The district properly developed the student’s IEP to address the student’s unique needs related to physical therapy.

Within 30 days of the date of this decision, the district must convene an IEP team meeting to review the student’s IEP to determine if compensatory services will be provided to the student for the lack of community experiences in September and October and to clearly describe what written communications will be provided to the parent. The district must submit a copy of the IEP to the department within ten days of the IEP team meeting.

In addition, within 30 days of this decision, the district must submit a corrective action plan to ensure that IEPs developed at the school, the student currently attends, clearly state the frequency and amount of special education services and IEPs are implemented as written.

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 2/2/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
For questions about this information, contact Margaret Resan (608) 267-9158