IDEA Complaint Decision 18-048

On May 16, 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 April 10, 2018:

• Properly developed the individualized education program (IEP) of a student with a disability to provide a free, appropriate public education (FAPE) in the least restrictive environment (LRE);
• Properly shortened the student’s school day;
• Properly responded to the request of the student’s parent for an IEP team meeting; and
• Utilized appropriately licensed staff to provide special education services.

The student’s IEP team met on April 10, 2018, to review and revise the student’s IEP. The IEP team determined the student would attend school in a community-based small group setting for a period of two hours per day. On May 14, the district increased the length of the student’s school day to four hours. On June 18, 2018, the student’s IEP team met to determine the student’s placement for the 2018-19 school year. The IEP team decided the student would attend an alternative school for the full school day.

A student’s IEP team determines the appropriate educational placement for the student. To the maximum extent appropriate, students with disabilities should be educated with students who are not disabled. Separate schooling should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Prior to April 2018, the student’s IEP team had met in October 2017, December 2017, and February 2018. At each of these IEP team meetings the team reviewed the student’s behavioral progress. As concerns about the student’s negative behavior increased, the district hired an outside behavioral consultant to assist the IEP team in determining and addressing the student’s needs. The behavioral consultant’s recommendations were reviewed by the IEP team at the February meeting and revisions were made to the student’s behavior intervention plan. At the April IEP team meeting, the team reviewed data on the student’s behaviors since the last IEP team meeting. The team discussed concerns about the student’s aggressive verbal and physical behaviors towards fellow students and staff which district staff believed created a safety concern for the student as well as other students. The team determined the student had made minimal progress in terms of self-regulation and re-regulation despite the supports and services provided in the current IEP and revised behavior intervention plan. The team was also concerned that the negative behaviors had led to a significant increase in off-task time for the student which was interfering with his academic progress. The team considered whether other settings, including settings within the district, would be appropriate to the student’s needs. The team ultimately concluded the appropriate placement for the student would be at an offsite location where the student could receive one to one re-teaching and reinforcement of safe behaviors while assisting the student in accessing strategies to de-escalate unsafe behavior. The district properly developed the IEP of the student to provide FAPE in the LRE.

A student’s IEP team may shorten the student’s school day if the student’s IEP team determines a shortened day is required to address the 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. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data, and determine whether the student is able to return to school full-time.

Documentation in the student’s IEPs confirms the student’s IEP team considered the student’s unique disability related needs in determining a shortened day was appropriate and that the team considered other ways to meet the student’s needs. As to a plan for returning the student to school full-time, the student’s IEP stated, “The duration of instruction per day will increase in a time frame that [the student] has acclimated to the new smaller setting and staff. Time will be increased based on his ability to self-regulate and access skills and strategies to self-regulate or re-regulate when prompted by an adult.” The IEP did not include a plan to meet more frequently and did not specify objective criteria by which the student’s ability to return to school full time would be assessed. Furthermore, the student’s placement was changed by increasing the student’s school day in May from two to four hours without an IEP team meeting. The district did not properly shorten the student’s school day.

The district shall submit a corrective action plan within 30 days specifying the steps it will take to insure all staff members understand the requirements for appropriately shortening a student’s school day.

A public agency must take steps to ensure that one or both of a student’s parents are present at each IEP team meeting. A student’s biological parent is presumed to be a student’s parent unless a court has determined the biological parent does not have the legal authority to make educational decisions for the student. IEP team meetings must be scheduled at a mutually agreeable time and place. An IEP team meeting must be held if a parent requests a meeting unless is it clearly unreasonable to honor the parent’s request.

An IEP team meeting for the student was scheduled for April 3, 2018. On April 2, 2018, the student’s mother informed the district that she would be unable to attend the scheduled meeting. The student’s mother agreed to reschedule the meeting for April 10, 2018, at 12:30 p.m. The student’s mother arrived for the IEP team meeting, but refused to participate in the meeting when she learned the student’s father would be participating in the meeting via telephone. Both parents had joint custody and educational decision making authority. The IEP team meeting went forward with only the student’s father participating. Later in the day the student’s mother contacted the district and requested an IEP team meeting and again stated she could not have an IEP team meeting with the student’s father participating. The district denied the mother’s request for an IEP team meeting, but offered to review the IEP developed at the meeting with the mother. As the district is obligated to include both of the student’s parents in any IEP team meeting, it was reasonable for the district to deny the mother’s request for an IEP team meeting when the mother had clearly indicated she would not participate in an IEP team meeting where the father was present. The district properly responded to the request of the student’s parent for an IEP team meeting.

Each school board must ensure every teacher and program aide holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed before engaging in duties of such a position. The LEA must ensure professional responsibilities are carried out by a special education teacher or program aide who is licensed by the department.

The student’s IEP specified specially designed instruction in social skills/behavior, writing, functional skills, and math. From April 16, 2018, to the end of the school year these services were provided by an appropriately licensed special education teacher or by an appropriately licensed special education paraprofessional working under the direct supervision of the special education teacher. The district utilized appropriately licensed staff to provide special education services.

This concludes our review of this complaint, all identified noncompliance must be corrected within one year of the date of this decision. This decision is final for the IDEA State Complaint process.