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IDEA Complaint Decision 18-060

On August 3, 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 that complaint. The issues are whether the district, during the 2017-2018 school year:
  • Properly implemented the individualized education program (IEP) of a student with a disability regarding the student’s health and safety needs, and provision of a one-to-one paraprofessional; and
  • Properly conducted a meeting of the student’s IEP team.

School districts must provide a free appropriate public education to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the IEP, and implementing the program articulated in the IEP. A school district must ensure a parent of a student with a disability is a participant on the IEP team and must take steps to ensure one or both of the student’s parents are present at each IEP team meeting or are afforded the opportunity to participate by other means. The parent must be provided written notice a reasonable time before an IEP team meeting. A meeting may be conducted without a parent in attendance if the district is unable to convince the parent they should attend.

It is the responsibility of the district to determine who may serve as the student’s parent for the purpose of special education decision-making. In a case of a student who resides in foster care, unless otherwise notified, the district should presume the student’s biological or adoptive parent remains the parent for purposes of education decision-making. Generally, a foster parent cannot act as the student's parent for the purpose of special education. A district may determine a foster parent has the rights and responsibilities of a parent under special education law only if the district first determines the legal right of the student’s parent to make educational decisions concerning the student has been extinguished by termination of parental rights, transfer of guardianship or legal custody, or by other court order.

On December 15, 2017, the district was notified by the student’s foster parent of the student’s potential enrollment. The student transferred into the district on January 29, 2018, and left the district on May 24. While enrolled in the district, the student resided in a foster care home. The student’s parent retained parental rights. Following receipt of transfer records on January 23, the district adopted the student’s annual IEP. The district determined that the student’s special education services could be implemented as written until the IEP team would meet on February 27, 2018. The adopted IEP did not require a one‑to‑one aide. However, based on the information from the previous school district, information from the parent, and information from the foster parent related to the student’s health and safety needs, the special education staff anticipated that additional support would be needed in the classroom, and therefore posted a special education aide position vacancy on January 25, 2018. On February 6, the student began attending a district Head Start program, and a substitute paraprofessional was added to the classroom in order to provide additional support. On February 16, a special education aide was hired by the district and started as an aide in the Head Start classroom.

The IEP team meet on February 27, 2018. The student’s parent was invited to the meeting and did not participate. The IEP team determined that due to the student’s safety needs, the student required a one‑to‑one paraprofessional. The district provided daily written communication about the student’s health and safety needs, academic, and functional performance. District staff also responded immediately to any safety concerns and demonstrated consistent measures to ensure the safety of the student. In addition, the paraprofessional that was hired to support the classroom was provided to the student as a one-to-one paraprofessional when the IEP was implemented on March 19. The student was provided with one-to-one paraprofessional support every day the student was in attendance. The district properly implemented the IEP of a student with a disability regarding the student’s health and safety needs, and provision of a one‑to-one paraprofessional.

On April 26, 2018, the IEP team met again to discuss the student’s transition to kindergarten. On April 19, April 23, and April 24, the district attempted to involve the parent in the IEP team meeting; however, the parent did not attend despite the district’s efforts to involve the parent. The district properly determined that the student’s mother retained parental rights and included the parent on the IEP team. The district did not include the foster parent at the April 26 IEP meeting because the foster parent is not a required IEP team member. The district met with the foster parent after the IEP team meeting and reviewed the IEP with the foster parent. In doing so, the district had received consent from the parent to share education records with the foster parent. The district properly conducted a meeting of a student’s IEP team.

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

//signed CST 10/5/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support