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IDEA Complaint Decision 19-005

On January 29, 2019 (form dated January 22, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2018-19 school year:
  • Properly enabled a student with a disability to participate in extracurricular activities; and
  • Properly provided the parent with a copy of the student’s individualized education program (IEP) prior to implementation

Each school district must take steps to provide students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. Each student’s IEP team must determine whether the student needs supplementary aids and services in order to participate. Supplementary aids and services must be described in a manner that makes the district’s commitment of resources clear to the student’s parent and all involved in developing and implementing the IEP. The description of the amount, frequency, location, and duration must be appropriate to the specific service. (Wis. Stat. §155.787, 34 C.F.R. §§300.320 and 300.323).

The student who is the subject of this complaint has participated in extracurricular activities of swimming, golf, and the school play. The issue raised as part of this complaint was whether or not the district enabled the student to participate in swimming. At the student’s annual IEP meeting on February 8, 2018, the IEP team concluded the student required a 1:4 adult to student ratio for supervision during extracurricular activities to ensure student safety. The IEP also contained positive behavioral supports such as scheduled sensory breaks, taking a break during class time if he feels he is unable to focus, having the student move around the classroom, and verbal reminders and/or visual cues to wait his turn to speak. The district provided documentation which confirmed the student was assigned to a group along with two other athletes which worked with and were supervised by a designated coach.

It is the policy of the district that all students registering for athletics must have a current physical examination on file in the activities office before the student is authorized to participate in practice or tryouts. To ensure clearance for participation, the district requires physicals to be completed and turned in to the athletic office no later than 3 school days prior to the first day of practice or tryouts. The swimming season for the district began on November 12, 2018. The student did not attend practice until November 19, 2018. The student turned in the appropriate registration and physical forms on November 19th. The student attended practice on that day but was not allowed to enter the pool as receipt of his athletic registration and physical form were not yet recorded in the athletic office as the administrative assistant who records receipt of such forms was out that day.

A swim team meeting was held with all of the swimmers at the beginning of practice on November 19th. The student was in attendance at that meeting. According to witnesses, the student began to exhibit off-task and blurting out behavior during the course of the meeting. In an effort to help the student remain on-task and refrain from blurting out, the student was first redirected multiple times, then separated from the peer he was talking to, and then finally, one of the coaches came in close physical proximity and placed a hand on the student’s shoulder. While none of these strategies met with success, they were consistent with the positive behavioral supports outlined in the student’s IEP. The student was eventually asked to step outside of the room so that the coach could speak to him in private. Upon speaking privately with the student, the coach made the decision to have the student remain in the hallway while the meeting concluded. The student remained in the hallway for approximately 5-10 minutes. Two coaches spoke to the student regarding his behavior after the meeting. Upon completion of the team meeting and speaking with the coaches, the student expressed a desire to leave practice. The student was encouraged to stay by the coaches as they believed the student could still learn by observing the other swimmers. The student eventually contacted a parent and was picked up from practice.

As a result of how things transpired during the team meeting and upon request of the parent, the student’s IEP team reconvened on November 27, 2018. The parents felt the student’s relationship with the swim team coaches was damaged after the student was asked to leave the team meeting. A plan to support the student’s involvement in the swim team was developed. The plan initially included a weekly meeting between the student and a member of the swim team coaching staff whereby positive comments and constructive feedback would be shared with the student in a 3:1 ratio. When this proposed plan was shared with the student the following day, the student expressed his desire not to meet with the coaching staff. As a result, the IEP team reconvened on December 13, 2018. At this IEP meeting, members of the student’s IEP team developed a new plan which contained tips to help the coaches recognize when the student may be experiencing anxiety and proactive strategies to support the student. The plan also stated that weekly check-ins would occur with the student, a parent along, and a coach on Mondays. In addition, the plan noted that discussing behaviors with the student was to be done in private and not in front of other students, staff, or parents. A copy of the students IEP was mailed to the parent on December 20, 2019, while a copy of the support plan was shared electronically via Google Docs.

The district admits there was some confusion with regards to when the weekly meeting between the swim coach, parent, and student was to begin (before or after winter break). On January 2, 2019 (first day back from winter break), the student’s case manager reached out to the student’s parent via text to ask if she was planning on meeting with the swim coach that night after practice. The parent replied that she would meet with the coach the following Monday, January 7th. On that date, the student’s case manager contacted the parent via text at 5:54 PM asking if she was going to meet with the swim coach. The parent indicated she was at the school between 5:20 and 5:36 but did not see the coach. The coach reported he came back out to the pool area, after putting equipment away, at 5:36 or 5:37 but did not see the parent. To prevent this from happening in the future a designated meeting time and place was suggested by the district on January 8, 2019, for any future meetings. Later that day, the parent indicated the student would be pursuing other options outside of the district for swimming and that meeting in the future would serve no point.

The parent also expressed concerns regarding whether or not her son was excluded from scheduled swim practices which were to be held over winter break. The district provided documentation of the swim practice calendar, which is posted to their website. The calendar showed scheduled practice on December 27th and 28th at 3:00 PM. In addition, a group text message, which was sent through a messaging software application, was sent to all athletes regarding practice on December 27th and 28th. This particular messaging software tracks which students open and read the text. According to documentation provided by the district, the student received and read the message regarding swim practice.

The district took appropriate steps to enable the student to participate in extracurricular activities, including providing supplementary aids and services. However, while the district provided a copy of the revised IEP to the parent and the support plan electronically, the district did not provide the notice of placement which would have specified the implementation date of the IEP.

Within 30 days of this decision, the district must develop a corrective action plan to ensure that when IEPs are reviewed and revised, the notice of placement is sent to the parent along with the copy of the IEP.

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 BVH 3/28/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support