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IDEA Complaint Decision 18-074

On October 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 this complaint. The issue is whether the district, since October 3, 2017, properly developed and implemented an individualized education program (IEP) for student with a disability.

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 student’s IEP, and implementing the program as articulated in the IEP. School districts must appoint an IEP team for each student with a disability. Information about the student is shared and documented within the IEP, including the student’s strengths, the student’s current academic achievement and functional performance, special factors, concerns of the parent/family/student, and the effects of the disability(ies) on the student’s academic achievement and functional performance. IEPs must also include annual goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other needs that result from the student’s disability. Each annual goal must contain a baseline from which progress can be measured, a measurable level of attainment, a statement on how the child’s progress towards meeting the goal will be measured, and when periodic reports on the progress the student is making towards the goal will be provided to the parents. (34 C.F.R. §§300.320, 300.323, and 300.324)

Services must be described in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP, including clear statements of the amount, frequency, duration, and location for each service. The school district must provide the student’s parent(s) prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the educational placement of the student. Written notification of the placement determination must be provided to the parent prior to implementation of the IEP. (34 C.F.R. §§300.320 and 300.323)

Extended school year (ESY) services are special education and related services required by the student’s IEP, and provided beyond the school term. A school district is required to provide ESY services to a student when the student requires such services to receive a free appropriate public education (FAPE). If the IEP team decides the child requires ESY services, the team must include a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services in the student’s IEP. The ESY services must be tailored to the unique needs of the student and may not be based solely on the availability of services during the summer. (34 C.F.R. §300.106)

During the course of the 2017-2018 school year, the student’s parent requested the district replace two members of the IEP team. The district did not replace the IEP team members. The district has discretion in assigning staff members to fulfill each role on the IEP team. The district properly appointed members of the student’s IEP team.

The student’s annual IEP team meeting was held on January 31, 2018. The team was properly constituted. The statement of present level included student strengths. The statement of academic achievement and functional performance documented the student’s needs related to current performance. The IEP team, however, did not describe how the student’s disability affects the student’s involvement and progress in the general education curriculum. The IEP contains ten goals and each of them included short-term objectives. Three of the ten goals were not measurable because they did not include baseline information and/or a matching level of attainment. The IEP included specially designed instruction, services, and related services including occupational and physical therapies with clear statements outlining the frequency, amount, and location of each service. However, the duration of several services were erroneously described as November 2017 to January 2018 (the effective dates for the previous IEP). Finally, the IEP team considered and documented ESY services. The IEP team determined which annual goals would be addressed during ESY. The IEP outlined that during ESY, the student would receive one hour of vision services once per week, one hour of orientation and mobility services per week, and one hour of speech and language services via teletherapy twice per week. The IEP stated these services would occur at the school for the “ESY duration.”

The IEP team subsequently met again on May 9 and August 28, 2018, to review and revise the IEP. In May, the IEP team included an update from the student’s provider of orientation and mobility services and added goals for occupational therapy and specially designed physical education. The annual goal for specially designed physical education was not measurable. The supplementary aids and services, specially designed instruction, and program modifications for school personnel remained unchanged from the January IEP, including dates of duration that did not match the IEP time frame. The IEP team clarified that “ESY days will be from 9am to 3pm on most Tuesdays, Wednesdays, and Thursdays from 6/06/18 to 8/16/18.” A schedule of the ESY days was attached to the IEP. The IEP team also changed the student’s speech and language teletherapy from one hour, two times per week, to one hour, once per week, without discussion. The district did not provide the parents with a notice of placement or a copy of the IEP prior to implementation.

During the August 2018 IEP team meeting, the student’s provider of orientation and mobility instruction, teacher of the visually impaired, speech teletherapy providers, and the student’s intervener all provided updates based on the student’s progress during ESY. The goals and short-term objectives remained unchanged. The IEP team corrected the dates of duration for services to 8/28/18 to 1/30/19.The district did not provide the parents with a notice of placement or a copy of the IEP prior to implementation.

During the 2017-18 school year, the student did not receive at least 10 speech and language therapy sessions due to staff unavailability, and did not receive specially designed instruction in vision between October 23, 2017, and December 5, 2017. During the summer of 2018, as part of required ESY services, the student did not receive two sessions of speech and language therapy due to staff unavailability. The district did not properly implement the student’s IEP during these instances.

On September 12, 2018, parents attended a meeting with the district director of special education and the superintendent. This was not an IEP team meeting but rather a meeting to discuss a letter the parents recently received from the district. During the meeting, parents expressed their concerns about continuing the student’s enrollment within the district. Upon completion of this meeting, the district informed the parents that their son’s special education and related services would be suspended for the following week. The parents opted to withdraw their son from the district while pursuing open enrollment within a neighboring district. A district cannot unilaterally suspend special education and related services as outlined in a student’s IEP. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

The district failed to properly develop and implement the student’s IEP. Because the student is no longer enrolled in the district, no student-specific corrective action is required at this time. Should the student return to the district, the district is directed to reconvene the IEP team and revise the student’s IEP to address the issues identified above, and determine compensatory services for the failure to properly develop and implement the student’s IEP.

Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • All IEPs describe how student’s disability affects the student’s involvement and progress in the general education curriculum;
  • All annual goals are measurable;
  • All IEPs contain appropriate descriptions of the amount, frequency, location, and duration of services to be provided;
  • All IEPs are properly implemented as written; and
  • Parents are provided prior written notice of changes to IEPs and copies of the IEP a reasonable time before they are implemented.
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. This decision is final for the IDEA State Complaint process.

//signed CST 11/30/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support