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IDEA Complaint Decision 18-083

On November 2, 2018 (form dated October 30, 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 in the complaint, which occurred beginning in August 2018, are addressed below.

Whether the district properly determined the educational placement for a student with a disability and properly implemented the student’s individualized education program (IEP).

A school district meets its obligation to provide a free and appropriate public education (FAPE) to a student with a disability, in part, by providing special education and related services. Districts must provide FAPE to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. In Wisconsin, the IEP team, including the student’s parents, determines placement for a student with a disability. (34 CFR §§ 300.320-300.324; Wis. Stats. § 115.78(2))

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected, and the reasons they were rejected. (34 CFR § 300.114)

When a student with a disability is placed by a county agency or by their parents in a facility that is not considered a private school, the district remains responsible for providing the student FAPE. Behavioral health day treatment programs, which must operate in compliance with Chapter DHS 40 of the Wisconsin Administrative Code, are required to offer educational services by arrangement with the school district responsible for providing educational services to children in the day treatment program. In these circumstances, school districts must ensure the student receives special education services provided by qualified staff that are consistent with the IEP. The services must be provided at no cost to parents and under public supervision and direction. The school district and the mental health day treatment program must coordinate the student's education and treatment. The district must conduct an IEP team meeting to review and revise the student's IEP when needed to ensure coordination of education and treatment. The district’s placement notice should document the student was placed for mental health day treatment services by the parents or an agency. (DPI Policy Letter from Stephanie Petska, 9/21/05)

The student who is subject of this complaint has a history of significant behavioral needs. On December 4, 2017, the student began attending a behavioral day treatment program. This placement was determined by the student’s IEP team. During the remainder of the 2017-2018 school year, the student received educational programming at the day treatment center, and the district and day treatment center staff regularly communicated regarding the student’s progress. The student continued to attend programming at the day treatment center during the summer of 2018. During an incident in June 2018, the student’s behaviors escalated at the day treatment center. Day treatment center staff implemented the student’s crisis plan, which resulted in the student being placed by the county in a hospital from mid-June through early July, 2018.

Following the student’s hospitalization, the student’s parent and community service providers including the county social worker attended a monthly treatment update meeting at the student’s day treatment program on July 19, 2018. A district staff member also attended the meeting. At that meeting, the day treatment provider indicated their facility was no longer appropriate to meet the student’s needs, and student’s community service providers discussed placing the student at a different facility. In August 2018, another monthly treatment meeting was held at the student’s day treatment program, attended by the student’s parents and community service providers, but no district staff. At this meeting the student’s community service providers, including representatives from the county, determined the student would be placed at a different facility for day treatment pending the county securing funding for the placement. On August 28, 2018, a member of the student’s community support team e-mailed a district staff member to inform the district the student would be placed at the new facility as of September 4, 2018. The district immediately arranged for a meeting of the student’s IEP team.

The IEP team met on August 30 and reviewed the student’s IEP in light of the county’s decision to place the student in the new facility, including a discussion of the student’s treatment needs. The district updated the student’s placement notice, indicating that the student’s “team of care providers decided that (the student’s) needs would be best met” at the new facility. Given these circumstances, the district properly determined the student’s educational placement.

The student began attending the new facility on September 4, 2018, and continues to attend the facility as of the date of this decision. The facility is not a behavioral day treatment center under chapter DHS 40 of the Wisconsin Administrative Code, nor is the facility listed as a private school in the department’s private school directory. The facility utilizes applied behavioral analysis therapy to teach skills utilizing positive reinforcement. The facility does not employ licensed teachers. The student’s IEP requires the student to receive 60 minutes daily of specially designed instruction in reading and math. Although the district communicated with the facility and provided work for the student to complete, the district did not properly implement the student’s IEP as educational services were not provided by qualified, licensed staff. In addition, due to complications related to county funding, there have been periods of time when the facility has not allowed the student to attend. During these periods of time, the student was not provided educational services. The district did not properly implement the student’s IEP.

Properly conducted an individualized education program (IEP) team meeting with required participants.

A district must ensure that the IEP team for each student with a disability includes the student’s parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, and a local educational agency (LEA) representative. A required IEP team member may be excused from attending an IEP team meeting, in whole or in part, when the district and parent agree, in writing, to their excusal and the member’s area of curriculum or related services is not being discussed. A required IEP team member may also be excused when the meeting involves a modification to, or discussion of, the member’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team member submits written input into the development of the IEP prior to the meeting. (34 CFR § 300.321; Wis. Stats. § 115.78)

The student’s IEP team met on October 30, 2018, to review and revise the IEP and to discuss the student’s continuing placement at the facility. The student’s parents and advocates, the district’s director of special education serving as the LEA representative, the student’s special education teacher, and the student’s county case manager attended the meeting. No regular education teacher of the student attended the meeting. The district invited representatives from the facility the student was attending, but they were unable to attend. As the student’s placement at the facility was initiated by the student’s county support staff, complications related to county funding were making student’s continued placement at the facility increasingly untenable. The IEP team discussed placement options for the student including continuing placement at the facility, transitioning the student back to the school district, and placing the student at a self-contained program run by the local cooperative educational services agency. The student’s parents and advocates expressed concern about changing the student’s placement since the student was making significant behavioral progress. The district agreed to continue the student’s placement at the facility pending the county securing necessary funding. The team discussed reconvening the IEP team once the funding situation became clear.

Since the October 30, 2018, meeting had the purpose of determining the student’s continuing placement, and since several options were considered and rejected, including the possibility of the student returning to the school, the student may have been participating in a regular education environment. As such, a regular education teacher should have attended the meeting or excusal provisions should have been followed. The district did not properly conduct an IEP team meeting with all required participants.

Since the October 30, 2018, IEP team meeting, the funding complications regarding the student’s placement at the current facility remain unresolved. The IEP team has not reconvened. The district is directed to convene the student’s IEP team within 30 days of the date of this decision to determine whether the placement continues to be appropriate in light of ongoing funding complications and the student’s current educational needs. The IEP team must also determine compensatory services necessary as a result of the district’s failure to implement the student’s IEP. The district is directed to provide the department a copy of the IEP including this determination within 10 days of the IEP team meeting. In addition, the district is directed to develop a corrective action plan to ensure staff include regular education teachers on IEP teams any time a student is, or may be, participating in a regular education environment. The district should submit this corrective action plan to the department within 30 days of the date of this decision.

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 12/28/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support