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IDEA Complaint Decision 17-088

On December 11, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the West Allis-West Milwaukee School District (district). This is the department’s decision regarding that complaint. The issues are whether the district, beginning on December 11, 2016,

  • Properly developed and implemented an individualized education program (IEP) of a student with a disability regarding positive behavioral supports, crisis plan, and access to general curriculum;
  • Properly considered the concerns of the parent of student with a disability for enhancing the student’s education;
  • Properly responded to parent’s requests for IEP team meetings;
  • Properly reviewed/revised the IEP of a student with a disability in Spring 2017 to address student’s health needs;
  • Properly provided the student’s parent with periodic reports on the progress the student is making toward meeting annual goals;
  • Properly determined student’s eligibility for extended school year (ESY) services; and
  • Properly responded to a parent’s request for a revaluation to consider additional areas of eligibility.

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. All services must be provided as described in the IEP. Staff who will implement the student’s IEP must be informed of their specific responsibilities. In the case of a student whose behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies to address that behavior.

An IEP was developed for the student that included a functional behavior assessment (FBA) and a behavior intervention plan (BIP). It included numerous positive behavioral supports, a crisis plan and supports for access to the general curriculum. Prior to the student’s transition to high school, a conference was held with the parent and high school staff to review the services in the IEP and to discuss how the IEP would be implemented at the high school. A facilitated IEP meeting was also held to address parental concerns. The program summary was updated to include health information from the parent and the student’s therapist, and supplementary aids and services were added based on this input, including but not limited to frequent breaks, calming devices, use of an iPad, and extended time for assignments.

The student was involved in an incident with another student in December 2016, and staff intervened. In accordance with the crisis plan, staff used calm voices, attempted to redirect, spoke to the student at a distance, and offered the student the opportunity to take a break in a safe place. The student’s behavior continued to escalate. At that point, the school resource officer (SRO) assigned to the high school intervened. The local police were called and the student was taken into custody. The police officer who responded to the incident is not employed by the district, was responding in a law enforcement capacity, and was not required to follow the student’s crisis plan. District staff properly developed and implemented the IEP, provided positive behavioral supports, and followed the student’s crisis plan from December 2016 until the end of the 2016-2017 school year.

A school district must take steps to ensure parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate. In developing the IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. The student’s IEP team met on January 10, 2017, to review and revise the IEP and to discuss the student’s placement. The parent was accompanied by an advocate at this meeting. The IEP team updated the parent’s concerns section of the IEP and the BIP. The IEP team determined placement in a district alternative program was appropriate, as the student required a smaller, highly structured, and specialized program to meet her behavioral needs. The IEP team met again on February 8, 2017, to further discuss the parent’s concerns regarding supplemental aids and services. The team discussed and revised the student’s IEP based on the parent’s input. The team also discussed and revised the student’s IEP to include the parent’s concerns about bullying and how the student might respond. The team met again on May 8, 2017, and conducted an annual review of the student’s IEP. The student’s parent attended and was represented by legal counsel. At the meeting, the team reviewed and considered the parent’s concerns. The IEP reconvened on May 16, 2017, to continue the annual review. During this meeting, the IEP team discussed, considered, and documented an extensive description of the parent’s concerns in the student’s IEP. The IEP team properly discussed the parent’s concerns and documented those concerns in the student’s IEP on several occasions.

The IEP team must meet to review the student’s IEP periodically, but not less than once per year. A parent may request an IEP team meeting at any time, and a district should grant any reasonable request. If the district denies the parent’s request for an IEP team meeting, the district must provide the parent with a notice of refusal, including an explanation of why the agency has determined that conducting the meeting is not necessary. The following IEP meetings were held during the 2016-17 school year, at the parent’s request: October 27, 2016, January 10, 2017, February 8, 2017, and June 22, 2017. At the annual IEP team meeting held on May 8, 2017, and May 16, 2017, the school nurse attended the meeting and provided input. The IEP team reviewed information provided by both the parent and the nurse and properly considered the student’s health needs in revising the IEP. Beginning in December 2016, through the end of the 2016-17 school year, the district properly responded to numerous parent requests to meet to discuss the student’s IEP and properly considered the student’s health needs

At the beginning of the 2017-18 school year, the parent requested an IEP team meeting. On September 26, 2017, district staff met with the student’s parent to discuss the student’s return to school, as the student had not been attending school since the beginning of the school year. This was not an IEP team meeting. The student’s absences continued, and the student did not attend school during the Fall semester. Although the district ultimately conducted an IEP team meeting in December 2017, this was too long of a delay. An IEP team meeting should have been held much earlier to address the student’s failure to attend school. During the 2017-18 school year, the district did not properly respond to the parent’s request for an IEP team meeting, and did not properly conduct an IEP team meeting to address the student’s absences.

Each IEP must specify when periodic reports on student progress toward meeting the annual goals will be provided to the parents. Beginning in December 2016, through the end of the 2016-2017 school year, the district provided quarterly reports on progress as specified in the IEP. In addition, the IEP team met throughout the school year to review and report on the student’s progress toward the IEP goals. The team shared teacher observations, classroom notes, and other information. The district properly provided the parent with reports on the progress toward the annual goals, as specified in the IEP, beginning in December 2016 through the end of the 2016-2017 school year.

A school district is required to provide extended school year (ESY) services to a student when the student requires these services to receive a free appropriate public education (FAPE). If the parent or any other IEP team participant expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine on an individual basis whether the child requires ESY services in order to receive 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. On June 22, 2017, the IEP team met to determine if the student required ESY services. The parent was present at the June meeting with her legal counsel. The IEP team reviewed present level information and other applicable information on progress, and determined there was no evidence of regression on previously mastered skills after extended absences. The district offered summer school, and the student did not attend. The district properly determined the student did not need ESY services.

On May 17, 2017, the IEP team initiated a request for a comprehensive re-evaluation to determine if the student met the criteria for other health impairment, autism, or emotional/behavioral disability. IEP team members, including the parent, reviewed existing data, which included reviewing information from the parent and an outside therapist, to determine if additional assessments were needed. The IEP team determined additional assessments were required, and the district sought consent from the parent. The parent explicitly denied consent for the re-evaluation, and consequently the district did not proceed with the evaluation. On October 6, 2017, the parent requested an evaluation for specific learning disabilities, but refused to provide consent for additional testing. At the December 18, 2017, IEP team meeting, the IEP team again raised the issue of re-evaluation with the parent, but the parent again refused to provide consent. The district properly responded to the parent’s request for a re-evaluation.

In January 2018, the district determined the student no longer resided in the school district. As corrective action, if the student is re-enrolled in the district, the district must conduct an IEP team meeting to determine compensatory services for failure to conduct an IEP team meeting to address the student absences during the fall of 2017. In addition, within 30 days from the date of this decision, the district must submit a corrective action plan to ensure that IEP team meetings are held to address extended absences and determine what additional services may be required for the student.

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.

//signed CST 2/9/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST: mm