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IDEA Complaint Decision 18-061

On August 7, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the Superior School District (district). This is the department’s decision regarding the complaint. The issue is whether the district, during the summer of 2018, properly changed the individualized educational program (IEP) and educational placement of a student with a disability.

On March 9, 2018, the IEP team met to develop an annual IEP and determine continuing placement for the student. The IEP included 600 minutes of specially designed instruction provided in the early childhood special education (ECSE) classroom four days per week. Beginning September 10, 2018, the instruction was to increase to 750 minutes five days per week in the ECSE classroom. The IEP was implemented as written during the 2017-18 school year. In an e-mail dated June 6, 2018, the district informed the parents that programming in the district was changing to “inclusion-based” and this would mean the student’s educational environment would change. The parents were concerned with this sudden change and requested a meeting. On June 26, the district contacted the parents by e-mail and asked if the parents were available to attend an IEP meeting. A subsequent e-mail from the district clarified the purpose of the meeting was to “talk about what next year will look like” and discuss how to meet the student’s needs. The ECSE teacher and the director of pre-kindergarten services met with the parents on July 3, 2018. During the meeting, the district proposed reducing the student’s specially designed instruction to 450 minutes five days a week in the regular education classroom. The parents expressed concerns about the reduction in specially designed instruction and the location of the services. The district explained, “as of the spring of 2018, there are no longer self-contained programs in the School District of Superior for the early childhood program.” The parents wanted to think about the proposal and the district scheduled a September IEP team meeting to finalize the IEP. The parents were provided notice on July 3 of an IEP team meeting scheduled for September 6, 2018. The purpose of the meeting was to review and revise the IEP and determine continuing placement. The IEP team met on September 6 and reviewed the proposed July 3 IEP. No regular education teacher participated in the IEP team meeting. The district explained that the reduction in hours of specially designed instruction would meet the student’s needs and allow the student to also receive instruction from the regular education teacher. The parents expressed concern that the student would be in a class of 18 students compared to four students the previous year, and that the student’s disability-related needs required the student to be educated in a small group setting of four to five students.

School districts must provide the parent notice of an IEP team meeting indicating the purpose, time, and location of the meeting and who will be in attendance a reasonable time before the meeting. On June 26 the district sent the parent an e-mail asking if they could attend an IEP meeting that week or the next. The parent responded by asking the purpose of the meeting and who would be in attendance. The district clarified that the ECSE teacher and director of pre‑kindergarten services would attend the meeting to talk about “what next year will look like” and discuss how to meet the student’s needs. The IEP team met on July 3, 2018. The district did not provide proper notice of the July 3 IEP team meeting.

The IEP team must include at least one regular education teacher of the student if the student is, or may be, participating in the regular education environment. An IEP team member may be excused from attending the IEP team meeting when the meeting involves a modification to or discussion of the member’s area of the curriculum if, prior to the meeting, the parent agrees in writing to the excusal and the member submits written input about the development of the IEP to the parent and the IEP team. A regular education teacher did not attend the July 3 and September 6 IEP team meetings, and there is no documentation that a regular education teacher was properly excused from these meetings. The district did not properly include a regular education teacher on the IEP team.

In determining the educational placement of a student with a disability, each school district must ensure the IEP team makes the placement decision during an IEP team meeting at least annually. To the maximum extent appropriate, students with disabilities must be educated with students who are nondisabled; however, each district must ensure a continuum of alternative placements, including placement in regular education classrooms and special education environments, is available to meet the needs of students with disabilities. Placement decisions must be individually determined based on each student’s needs as described in the IEP, and not solely on factors such as availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. Under the circumstances of this complaint, the change in the student’s placement was initiated by the district because of a change in the district’s service delivery system, which included elimination of early childhood self-contained programs. The change was not initiated based on the student’s needs. The district did not properly change the student’s placement and did not ensure a continuum of alternative placements was available. Within 15 days of the date of this decision, the IEP team must meet to review and determine placement, and ensure that a continuum of alternative placements is available. The district must also ensure that the IEP team meeting is properly noticed, and a regular education teacher is included as a member of the IEP team. Within 10 days from the date of the IEP team meeting, the district must submit a copy of the IEP reflecting this determination. 

In addition, within 30 days of the date of this decision, the district must also develop a corrective action plan outlining the steps it will take to ensure proper written notice of IEP team meetings are provided to parents; IEP teams include a regular education teacher if the student is, or may be, participating in the regular education environment; placement decisions are made on an individualized basis by the IEP team during an IEP team meeting, and a continuum of alternative placements is available. The corrective action plan must include a review of all early childhood placement decisions made between June 1, 2018 and present to determine whether they were properly made based on the individual needs of the child. Send a copy of the student’s revised IEP and the district’s corrective action plan to the department.

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.

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