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IDEA Complaint Decision 18-075

On October 10, 2018 (letter dated October 2, 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 issues are whether the district, since October 10, 2017,
  • Properly implemented an individualized education program (IEP) for a student with a disability;
  • Properly disclosed pupil record information;
  • Provided special education services by properly licensed staff, and
  • Properly responded to parent requests.
Properly implemented an individualized education program (IEP) for a student with a disability

School districts must provide each child with a disability a free appropriate public education (FAPE) in the least restrictive environment (LRE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing the special education services specified in the student’s IEP. A school district must ensure staff responsible for implementing the student’s IEP have access to IEPs and are informed of their specific responsibilities. Districts must consider the impact of student absences on the ability of the student to make progress in the general education curriculum and toward IEP goals. If a student is absent from school for a prolonged period of time, the district must convene an IEP team meeting to discuss the student’s IEP and determine if it is necessary to modify the program or placement in order to ensure the continued provision of FAPE. The placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. Removal from the regular education environment should only occur if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR §§§ 300.114, 300.116, and 300.320-300.324)

The student who is the subject of this complaint has documented health conditions. The student experiences seizures, which health care providers believe are triggered by high levels of temperature/humidity. Every morning, and a few times throughout the day, district staff monitor the temperature/humidity in the school to share the information with the parent so the parent can determine whether or not it is safe for the student to attend school. The temperature/humidity level has only been within a safe range on a handful of occasions since the district began recording this data. In the 2017-2018 school year, it was slightly more manageable for the district to provide an environment conducive to the temperature/humidity requirement because the student received instruction in a small office. The district had concerns that this was not the LRE as the student was with an adult in an office and away from his peers. The student entered high school at the beginning of the 2018-2019 school year. The high school is in a different building, and the district modified a classroom to attempt to meet the student’s needs. Despite these modifications, it remains difficult to regulate acceptable levels of temperature/humidity. In the 2017-2018 school year, the student was absent more than 81 days. In the 2018-2019 school year, the student has been absent more than 35 days. District staff and the parent cited the student’s health concerns as the reason for the unusually high number of absences.

When a student is not in school, the student cannot receive FAPE. It is the IEP team’s obligation to identify an appropriate placement for the student to receive FAPE. If the district is unable to provide the necessary temperature/humidity controlled environment in district school buildings, the student’s IEP team must consider serving the student in a different location. From October 2017 through October 2018, the IEP team convened three times, but the IEPs do not reflect that additional placement options were considered and rejected. Because the student had significant absences from school and the IEP team did not discuss placement options, the district did not properly implement the student’s IEP.

On November 16, 2018, after this complaint was filed, the student’s IEP team convened to discuss placement. Some of the placement options presented to the parent included schools that may have the capacity to provide support to medically fragile students. Additionally, homebound placement was discussed. The IEP team is now actively working to identify the most appropriate placement based on the student’s individualized needs.

Properly disclosed pupil record information

Student records, including IEPs, maintained by a school district must be confidential and cannot be disclosed without parent consent except under certain circumstances. Disclosure may be made to school officials, including teachers, within the agency who have legitimate educational interests in the information. An educational agency must use reasonable methods to ensure that school officials obtain access to only those education records for which they have legitimate educational interests. Parental consent is required for the exchange of academic and health information with medical and community providers. (34 CFR § 300.622)

The student’s parent gave written consent for the district to exchange information with the student’s medical providers. Once consent was granted, the two parties exchanged information. The parent maintains that the information shared by the district with the medical provider was inaccurate. Further, the parent maintained that the district would not discuss with the parent the information shared between the district and the medical provider. Pupil record laws do not restrict the personal/professional opinions expressed by one party to another in the course of exchanging pupil records. Once consent for the release of pupil records is given, it is permissible for the two parties to exchange information within the scope of the release. The district properly disclosed pupil record information.

Provided special education services by properly licensed staff

Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. Paraprofessionals holding a valid special education program aide license may support the provision of special education services under the supervision of an appropriately licensed teacher. (34 CFR § 300.156; Wis. Stats § 118.19; Wis. Admin. Code § PI 34)

On October 16, 2017, the department notified a staff member who worked as a special education teacher that the teacher was ineligible to receive a one-year license for the 2017-2018 school year. Previously, the teacher had been issued three one-year licenses. When the district was made aware that the teacher did not have the proper licensure, they immediately reassigned the teacher to a position for which the teacher was properly licensed. Another district employee, who was properly licensed as a special education teacher, assumed the teacher’s caseload until the position was permanently filled. The district did not provide special education services by properly licensed staff from the beginning of 2017-2018 school year through mid October 2017.

Properly responded to parent requests

School districts must permit parents and/or adult students to inspect and review any education records that are collected, maintained, or used by the district. A school district must comply with a request for access to education records without unnecessary delay and before any IEP team meeting. In all cases, the school district must comply with a parents and student’s request within 45 days. (34 CFR § 300.613)

On August 7, 2018, the parent requested, in person, the student’s pupil records. On August 8, 2018, the parent sent district staff an email again requesting the student’s pupil records. District staff communicated to the parent that the records would be available by August 10 for the parent to pick-up from school. The district properly responded to a parent’s request for pupil records. An IEP team meeting must be held if a parent requests a meeting unless is it clearly unreasonable to honor the parent’s request. (34 CFR §§ 300.322 and 300.503)

On August 1, 2018, the parent sent an email to two district staff and five other people (some of them health care providers) requesting that an IEP team meeting be scheduled. On August 27, 2018, the parent sent a follow up email and requested an IEP team meeting before the start of the school year. On August 30, 2018, district staff responded by email to the request and inquired whether or not the parent wanted a specific staff member to be there, because if the parent wanted that staff member there, the IEP team meeting would not be able to occur until September 17, 2018. The reason for this was because that staff member’s employment contract did not start until September 17, as the staff person was a new hire. On September 3, 2018, the parent communicated by email that she wanted that staff member present, and a meeting was set for September 18, 2018. Although there was a delay in the district staff’s response to the parent’s initial request on August 1t for an IEP team meeting, the IEP team meeting would not have been able to occur sooner than it did given the parent’s desire to have a specific person present. The district properly responded to a parent’s request for an IEP team meeting.

Within 40 days of the date of this decision, the IEP team must convene and determine the most appropriate placement for the student. During this meeting the IEP team must determine whether compensatory services are necessary for the time the student’s teacher was not properly licensed. Within 10 days of the meeting, the district must submit to the department a copy of the IEP.

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

//signed CST:crj 12/7/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support