On May 1, 2018 (letter dated April 20, 2018), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, since May 1, 2017:
- Properly developed an individualized education program (IEP) for a student with a disability regarding positive behavioral interventions, supports, and strategies;
- Properly implemented the student’s IEP;
- Properly responded to a parent’s request for student records;
- Properly responded to a parent’s request for an IEP team meeting; and
- Properly conducted the student’s special education reevaluation.
School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include measurable annual goals to meet the student’s needs that result from the student’s disability and a statement of the special education services to enable the student to advance toward attaining the annual goals. At the beginning of each school year, each district must have an IEP in effect for each child with a disability, and services must be provided to the student in accordance with the student’s IEP. 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. In addressing the individualized behavioral needs of a student, the IEP team must consider and include appropriate behavioral goals, specially designed instruction, and other supports in developing the IEP. The Individuals with Disabilities Education Act (IDEA) does not require that there be a separate document labeled a behavior intervention plan (BIP). Rather, behavioral supports can be incorporated throughout the IEP.
The student open enrolled into the district at the beginning of the 2016-17 school year. The district conducted a reevaluation of the student in fall 2016 and the IEP team convened on
November 15, 2016. The student was found eligible under the impairment area of other health impairment (OHI). To more effectively support the student, the district hired a consultant in May 2017 to conduct a functional behavioral assessment (FBA) and provide recommendations for additional behavioral supports. The consultant titled the document “behavior support plan (BSP).” The parents were provided a copy of the FBA/BSP report after it was developed.
The IEP in effect at the beginning of the 2016-17 school year, identified behavior as a special factor, provided positive interventions and supports, contained a goal around emotional regulation, and included specially designed instruction to build emotional regulation skills. District staff met with the parent on September 27, 2017, to discuss the FBA, and the behavior supports and interventions identified in the BSP, and which were being implemented by staff. However, this was not an IEP team meeting, and the student’s IEP was not revised to include these additional supports. On
November 7, 2017, the IEP team met and specific recommendations from the BSP, such as social stories, positive video for modeling, and sentence starters, were included in the student’s IEP, and these supports were implemented as required by the IEP. In December 2017, the district hired the consultant again to update the FBA and BSP, and the consultant conducted an additional observation of the student. The IEP team convened on January 8, 2018, to review and revise the IEP, and the IEP team incorporated the supports identified in the BSP by attaching it to the IEP, which was implemented by district staff. The student’s IEP was not properly developed when the district failed to conduct an IEP team meeting to review the FBA and to revise the IEP to include the supports identified through the BSP that were being implemented by district staff. No corrective action is required because the IEP team subsequently met in November, January, and May, to review the BSP and determine the additional behavioral supports that should be included in the IEP.
A district must permit parents, on request, to inspect and review their child's education records. An “education record” is defined as “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.” The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, educational placement, and the provision of a free appropriate public education to the student. A school district must comply with a parent’s request to access education records without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days following the request.
The parents requested a reevaluation of the student during a meeting on March 7, 2018, and two days later, on March 9, 2018, the parents requested copies of the student’s IEP, BIP, and any other documentation that would demonstrate the student’s determination of eligibility. Within that request, the parent also requested a document attached to the IEP that identifies the student’s ‘current label.’ The IEP team met on March 20, 2018, to review existing data, and at that meeting, the parents were provided the requested information. This information was also sent home to the parents on
April 23, 2018, along with the notice and request for consent for additional testing. The parents believed the district did not provide a copy of the student’s BIP as they thought it was a separate document. However, the IEP addressed the student’s behavioral needs through the BSP and other behavioral supports identified in the student’s IEP, and there was no separate BIP document. The district did not properly respond to the parent’s March 9th request for pupil records as the requested information was available but not provided prior to the March 20th IEP team meeting. No corrective action is required because the parent subsequently received the information.
School districts must hold IEP team meetings to review a child’s IEP periodically, but not less than annually. A parent may request an IEP team meeting at any time. The district should respond to any reasonable request from a parent for a meeting to review the student’s IEP. If the district denies a parental request for an IEP team meeting, the district must notify the parents of their refusal in writing, provide a reason for the decision, and inform the parents of their procedural safeguards.
During the 2017-18 school year and prior to the filing of the complaint, the IEP team met on three occasions: November 7, 2017; January 8, 2018; and March 20, 2018. The parent requested an IEP team meeting to discuss the student’s behavior intervention plan on April 10, 2018, via e-mail. The IEP team met on May 9, 2018, to review the student’s behavioral supports. Given the specific facts of this case, this was not too long of a delay. The IEP team also met on May 15, 2018, to determine continuing eligibility for the student, and on May 30, 2018, to revise the student’s IEP. Staff and parents also regularly exchanged e-mails, held informal meetings, and engaged in dialogue. The district properly responded to a parent’s request for an IEP team meeting.
Special education evaluations must be sufficiently comprehensive to identify all of the child’s special education and related service needs. As part of any reevaluation, the IEP team, which includes the parent, must review existing evaluation data and identify what additional data, if any, are needed to determine whether the student continues to have a disability and the educational needs of the student. Within 15 business days of the notice of reevaluation, the district must send the student’s parent a request for consent for additional testing or notice that no additional testing is necessary. The IEP team must convene and determine eligibility within 60 days of receiving parental consent for reevaluation or notifying parents that no additional assessments are needed. Within 30 days after a reevaluation, the IEP team must review and revise the student’s IEP, as appropriate.
Prior to the events giving rise to this complaint, the student was identified as a student with a disability in the impairment area of OHI. In March 2018, the parents requested a reevaluation. On March 14, 2018, the district provided notice of reevaluation to the parents. The IEP team met on March 20, 2018, to review existing evaluation data and determined additional information was needed regarding the student’s sensory and behavioral needs. The district requested and received parental consent for the additional testing. On May 15, 2018, within the 60 day time limit from receipt of parental consent, the IEP team met to determine the student’s continuing eligibility. The IEP team reviewed existing data about the student, including information on previous evaluations, teacher observations, staff and parent information, information from outside therapists, and previous interventions and the effects of those interventions. The team reviewed results of current assessments conducted by members of the IEP team as part of the evaluation, including the Wechsler Individual Achievement Test, Autism Spectrum Rating Scales, and Adaptive Behavior Assessment System. The IEP team determined the student met the criteria for the impairment area of autism and continued to need special education. The team did not discuss or reject the student’s continuing eligibility under the area of OHI, and the impairment area was not included in the eligibility report, effectively discontinuing the student’s eligibility without consideration. The IEP team did not properly conduct a comprehensive reevaluation of the student. As corrective action, the district must by September 30, 2018, conduct a reevaluation that includes all possible areas of impairment and revise the IEP, as appropriate, based on the reevaluation. The district must submit a copy of the reevaluation and revised IEP by October 15, 2018.
All noncompliance identified above must be corrected as soon as possible, but in no case more than a year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.
Carolyn Stanford Taylor