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IDEA Complaint Decision 18-092

On December 10, 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, since December 10, 2017, properly developed the individualized education program (IEP) of a student with a disability, and properly implemented the student’s IEP.

In developing each student’s IEP, the IEP Team must consider the concerns of the parents for enhancing the education of their child. The IEP must include a statement of the special education and supplementary aids and services to be provided to the child, and the anticipated frequency, location, and duration of those services. The IEP must describe services in a manner that is understandable to all involved in developing and implementing the IEP. IEP teams must individually determine the services in each student’s IEP on the basis of the student’s abilities and needs, and not on factors such as availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. (34 CFR §§ 300.320(a) and 300.324 (a); DPI Information Update Bulletin 10.07 “Describing Special Education, Related Services, Supplementary Aids and Services, and Program Modifications and Supports,” October 2010)

The student’s IEP in effect on December 10, 2017, included specially designed instruction described as 50 minutes of math instruction and 60 minutes of English/language arts (ELA) instruction in the special education room each day. Each period of specially designed instruction included an additional description of “20 minutes of direct instruction” and the remainder of the time for “indirect instruction from the special education assistant.” The IEP also included, as a supplementary service, support from a paraprofessional in math, reading, daily living skills, art, music, physical education and field trips. The IEP specified the student “requires availability of a paraprofessional in the classrooms the student is not in with a special education teacher.” This included art and music.

On January 23, 2018, the IEP team met for the annual IEP review. The revised IEP included 55 minutes of specially designed math instruction and 50 minutes of ELA in the special education classroom each day until June 2018. The IEP further specified that beginning in September 2018; these services would be reduced to 45 minutes each in the special education classroom daily with no further detail. The statement regarding the support from a paraprofessional remained unchanged. At the IEP team meeting, the student’s parent questioned the reduction in math and ELA services. The district explained this was due to the student transitioning from middle school to high school and the desire to align with the new high school schedule. The amount of instruction a student receives must be individualized, based on the needs of the student. In this case, the amount of specially designed instruction was reduced to correspond with the school’s schedule. Furthermore, the amount of direct instruction was removed without a determination as to whether the needs of the student required a specified time of one-to-one instruction. The district did not properly develop the student’s IEP.

On October 18, 2018, the parent emailed the district and requested an IEP team meeting to review the student’s IEP, specifically to revise the statement regarding paraprofessional support and to clarify the amount of direct instruction in math and ELA. The IEP team met on October 29, 2018, to review and revise the student’s IEP. The statement regarding paraprofessional support was revised to require one-on-one support. With an implementation date of October 31, 2018, the math and ELA services were revised to clarify that the student would receive 20 minutes direct instruction with a special education teacher and 20 minutes indirect instruction with a special education assistant during each class period. In December, the student’s special education teacher informed the parent that the IEP was not being fully implemented due to insufficient district resources. During an interview with the director of special education during this complaint investigation, the district acknowledged the student did not receive the 20 minutes of direct instruction in both math and ELA as specified in the IEP from October 31, 2018 through November 2018. The district failed to properly implement the student’s IEP; the district has subsequently reconvened the IEP team and revised the student’s IEP to include compensatory services in math and ELA.

Within 30 days of the date of this decision, the district must reconvene the IEP team to review and determine whether services provided meet the individual needs of the student, and revise accordingly. Within 10 days of the meeting, submit a copy of the IEP to the department.

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

//signed BVH:pmw 2/8/2019
Barbara Van Haren, Director, PhD
Special Education Team
Division of Learning Support