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IDEA Complaint Decision 18-025

On March 7, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues related to the 2017-18 school year between December 1, 2017, and March 30, 2018, are identified below.

Whether the district properly determined placement of a student with a disability

In Wisconsin, placements of students with disabilities must be determined by individualized education program (IEP) teams in conformity with least restrictive environment (LRE) requirements. The placement determination must be based on the child’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. Students with disabilities should not be removed from education in an age-appropriate regular education classroom solely because of needed modifications in the general education curriculum. Removal from the regular education environment should only occur if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

On December 18, a meeting was held with the student’s parents, a district representative, a special education teacher, special education classroom assistant, and the principal, to discuss a potential classroom and teacher change for the student following an email request from the parent. During the meeting, the parent and school staff visited the new classroom. Later in the meeting participants all signed a statement written by the parent indicating the classroom was acceptable and that both parents accepted the change of classroom and teacher. The special education classroom the student was originally placed in for the 2017-2018 school year, had eight students, with the majority of the students closer to the student’s age, who is 10, than those in the new classroom. The other students in the new special education classroom were between 6 and 7 years old. Both special education classrooms use the same district alternative curriculum and all students participate in the Dynamic Learning Maps (DLM) alternate assessment. However, it is unclear if the curriculum follows a scope and sequence with age appropriate modifications between the two classrooms.

The meeting on December 18, 2017, where the decision was made to change the student’s classroom was not an IEP team meeting. In addition, the participants present during the meeting did not consider all LRE requirements when they changed the student’s placement. The district did not properly determine the student’s placement.

Whether the district 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. A school district must ensure staff responsible for implementing the student’s IEP have access to IEPs and are informed of their specific responsibilities.

When there is an extended period of absence, districts must consider the impact of a student’s absence on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in his or her IEP. If the student is absent from school for a prolonged period of time, or there is a pattern of repeated short-term absence from school for reasons associated with the student’s disability, the district must reconvene the IEP team to discuss the student’s current IEP in light of the student’s absences, and determine whether the IEP and/or the placement needs to be changed in order to continue to provide FAPE to the student.

The student’s parent alleges the district failed to provide speech and language therapy services, occupational therapy services, physical therapy services, assistive technology services, and an appropriate curriculum to meet the student’s goals. Between December 1, 2017, and March 30, 2018, the student attended school twelve days, and the absences were excused by the district. The student’s IEP includes speech and language therapy two times per week for twenty minutes per session, occupational therapy one time per week for 20 minutes and physical therapy one time per week for 20 minutes. When the student was in attendance, these services were provided.

The student’s IEP included supplementary aids and services of visuals and augmentative forms of communication daily, including an eye gaze communication book. These services were provided when the student was in attendance. On April 26, 2017, a technology company representative and district staff, including district speech and language therapists, met with the student’s parents to discuss a fall 2017 trial use of a high technology eye gaze device with the student. The student’s parents were provided paperwork to sign permission and asked to provide their private insurance information. On August 30, 2017, a district speech and language therapist discussed with the student’s parent setting up the eye gaze high technology device trial and the necessary paperwork needed from the parent. At the November 13, 2017, annual IEP team meeting, the student’s parent expressed the desire to move ahead with a high technology eye gaze device. In addition to the IEP team meetings, on December 19, 2017, and March 6, 2018, speech and language therapists also discussed the high technology eye gaze device trial and paperwork with the parent.

If the IEP team determines a student needs assistive technology devices as a supplemental aid to enable the student to be educated with nondisabled children to the maximum extent appropriate, the district must provide this device at no cost to the parent. In this situation, discussions regarding assistive technology for the student went on for months, often outside of IEP team meetings. However, the student’s IEP was not modified to include a plan for evaluating the student’s assistive technology needs nor did the district commit any specific assistive technology services or devices to the student. In addition, if assistive technology is required in order to provide FAPE, then its provision cannot be contingent upon requiring private insurance information.

The student’s IEP included specialized instruction in functional and adaptive skills concurrent with academics in the special education environment. The student’s IEPs include annual goals and short-term objectives covering gross motor skills, strength and eye-hand coordination; identification and matching numerals up to 20; matching the 26 letters of the alphabet; body positioning to participate in classroom activities; reading/matching monthly sight words; coin identification and matching; functional communication skills including answering Yes/No and WH questions, sharing his wants and needs, and indicating when something is wrong; and functional upper extremity use to access materials. The IEP team determined the student would participate in the DLM and an alternative curriculum. The student’s teachers and the student’s one-to-one educational assistant acknowledged they had not read the student’s IEP and were not aware of the student’s specific goals or the specially designed instruction they should provide the student. Although the student participated in classroom group lessons based on the alternative curriculum, there is no evidence the student was provided specially designed individual instruction to meet the student’s academic IEP goals.

The district did not properly implement the student’s IEP or evaluate the student’s assistive technology needs. The district should have also conducted an IEP team meeting to address the extensive student absences, and review and revise the IEP to ensure that the student would continue to receive FAPE.

Whether the district improperly disclosed pupil record information

Student records, including IEPs, maintained by a school district must be confidential and cannot be disclosed without parent consent except under certain circumstances. Disclosure may be made to school officials, including teachers, within the agency who have legitimate educational interests in the information. An educational agency must use reasonable methods to ensure that school officials obtain access to only those education records for which they have legitimate educational interests.

On March 12, 2018, the student’s parent with a parent advocate participated in a meeting to resolve the parent’s concerns about her child’s special education. The agreement to meet includes a confidentiality agreement with the signatures of everyone participating in the meeting. During the meeting to share district suggestions, a third district staff member joined the meeting. The parent verbally agreed to the third staff member’s participation and all six meeting participants signed the agreement to meet. The district did not improperly disclose pupil record information.

Whether the district contacted medical providers without parental consent

Parental consent is required for the exchange of academic and health information with medical and community providers. With parental/guardian authorization, a school nurse can serve as a liaison between the school and medical and community providers. During the school year, district staff provided the student’s parent district health services forms and verbally discussed the forms with the parent. These forms include: Parent Request: Tube Feedings at School; Health Insurance Portability and Accountability Act (HIPAA)-Compliant Authorization for Exchange of Health or Education Information; and Nonprescription Medication Request. The student’s parent did not give consent for the district to exchange information with medical providers. The department’s investigator reviewed documentation provided by the parent and the district, including email messages, and interviewed the parent, district administrative staff, nursing staff, and special education providers. The department’s investigator did not find evidence that any district staff contacted medical providers without the parent’s consent.

Whether the district properly responded to a parent’s request for pupil records

A local educational agency (LEA) must permit parents to inspect and review any education records, relating to their children, which are collected, maintained, or used by the district. A school district must comply with a request for access to education records without unnecessary delay and before any IEP team meeting. In all cases, the school district must comply with a parent’s request within 45 days.

On February 28, 2018, via email, the student’s parent contacted district staff to request educational records regarding two of the parent’s children with IEPs. On March 2, 2018, an IEP team meeting was held for the student who is the subject of this complaint. The district did not provide the requested records prior to the IEP team meeting. On March 20, a district staff member informed the parent, via email and telephone, the records were printed and ready to be picked up. On March 27, the parent picked up the records at the district office, but realized the records provided did not include all the information she wanted. The parent immediately clarified to a district staff members what other records she was seeking. The district is in the process of making copies and providing the additional information to the parent. The department finds that given the scope of the parent’s request and the fact that the request was made less than two days before the IEP team meeting, the district properly responded to the parent’s pupil record request.

Whether the district properly conducted IEP team meetings with required participants

A district must ensure that the IEP team meeting for each child with a disability includes in addition to the child’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, a LEA representative and an individual who can interpret the instructional implications of evaluation results. When appropriate, an individual staff member on the team can fulfill more than one required role. At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child may be members of the IEP team. These additional individuals are not required IEP team members. The district determines which district staff are assigned to an IEP team.

On March 2, 2018, an IEP team meeting was held. The special education teacher at the IEP team meeting was the student’s special education teacher from the beginning of the school year through December 19, 2017. Between December 19 and March 2, 2018, the student had a new special education teacher. However, due to student absences, the student was only with this new teacher on two days during that time and the teacher was out on medical leave on March 2nd. The special education teacher appointed to the IEP team and who attended was the most recent special education teacher of the student available to serve on the IEP team and was knowledgeable about the student and the student’s current IEP. Prior to this IEP team meeting, the student’s parent had requested the team consider placing the student in a regular education classroom. However, the IEP team did not include a regular education teacher. The district did not properly include all required IEP team participants.

Whether the district provided required special education services utilizing properly licensed staff

Districts must ensure students continue to receive FAPE without interruption during long-term staff absences. Districts accomplish this, in part, by providing substitute staff with proper licenses and ensuring the substitute staff are familiar with the IEPs of their assigned students and aware of their responsibilities to ensure the IEPs are implemented. As mentioned previously in this decision, the substitute teachers assigned to the student’s classroom by the district acknowledged they did not read the student’s IEP and were not aware of the student’s specific goals or the services they should provide the student. Between December 1, 2017, and March 30, 2018, the student attended school eleven days. On one of those days the substitute teacher assigned to the classroom was not appropriately licensed. The educational assistant assigned to provide one-to-one assistance to the student has a valid special education program aide license.

Within 20 days of the date of this decision the district must conduct an assistive technology evaluation, and conduct an IEP team meeting to determine the assistive technology required to address the student’s needs, to determine placement in conformity will all LRE requirements, and to determine compensatory services for failing to address the extended absences and failure to implement the IEP when the student was in attendance. The district must provide the department within 10 days of the date of the IEP team meeting, a copy of the revised IEP documenting these determinations, including the notice of placement with options considered and rejected.

The district is directed to contract with an outside consultant, approved by the department, to conduct a program and curriculum review of all classrooms in the school that use the alternative curriculum. This review must be completed by September 2018, and if curriculum revisions are required as determined by the review, the revisions must apply to all schools in the district that utilize the alternative curriculum. The review must include a determination of whether the curriculum is appropriate for each age level, and whether it can appropriately be used to provide individualized academic instruction based on each student’s goals and objectives, and to allow students to make progress.

Within 30 days of this decision, the district must also develop a corrective action plan to ensure that at the school the student currently attends, the IEPs of all students with disabilities are implemented as written, and that all staff responsible for implementing a student’s IEP have access to the IEP and are informed of their specific responsibilities; all placements are determined through IEP team meetings, by properly constituted IEP teams, and are made in conformity with LRE requirements; and policies, procedures and practices regarding assistive technology evaluations and devices for students with disabilities are reviewed, and if needed, revised.

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 4/20/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
For questions about this information, contact Margaret Resan (608) 267-9158