On January 30, 2019 (form dated January 30, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). On February 27, 2019, the complainant filed a due process hearing request on the same issues, and the complaint was set aside. On June 3, 2019, the department received notification from the complainant requesting the department resume this complaint's investigation. This is the department’s decision regarding that complaint. The issues are whether the district:
- During the summer of 2018, properly provided extended school year services to a student with a disability; and
- During the 2018-2019 school year:
- Properly conducted a reevaluation of a student with a disability;
- Properly determined the student’s placement in the least restrictive environment;
- Properly determined the student’s participation in statewide assessments;
- Properly developed the student’s postsecondary transition plan; and
- Properly responded to a parent’s request for a meeting of the student’s individualized education program (IEP) team.
Whether the district properly provided extended school year services to a student with a disability.
A school district must provide extended school year (ESY) services to a student when the student requires these services to receive a free, appropriate public education (FAPE). If any IEP team member expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine on an individualized basis whether the child requires ESY services in order to receive FAPE. In determining whether ESY is required, the IEP team should consider multiple factors, including the likelihood of skill regression and the recovery time from this regression. 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 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 on the availability of services during the summer. (34 CFR § 300.106). Districts must consider the impact of student absences on the student's progress and performance and determine whether an interruption in special education services constitutes a denial of FAPE. This is an individual determination that must be made on a case-by-case basis. (Letter to Clarke, 107 LRP 13115 [OSEP 2007]).
The student’s IEP team met on April 30, 2018, to discuss ESY services. The complainant attended by telephone. The team unanimously agreed that speech and language instruction in a community setting was needed for the student to receive FAPE and documented that the student would receive seven 45 minute sessions of speech and language services during the summer of 2018. Ultimately, only five of the seven sessions took place because the student was out of state and unavailable for two sessions. District staff were unable to make up the missed sessions. District staff reviewed progress monitoring data, which demonstrated the ESY services provided were effective. The student did not experience regression in speech skills during the summer of 2018 as a result of the missed ESY sessions.
Additionally, during the April 30, 2018, meeting, the IEP team discussed the student’s needs in reading and math and determined the student did not need direct instruction ESY services in these areas. However, the team determined the district would provide the student with an independent learning software program as an option for the family to use to supplement the student’s education. The IEP included the description “[software] for reading and math –completed at home-district provides the software” as a supplementary aid and service in the student’s IEP. The district provided the student with summer access to the software program. When the summer began, the complainant believed the district was to provide a staff member to provide in-person support to the student while the student worked on the software to assist in keeping the student on task. However, the IEP team did not make this determination, and as such, it was not reflected in the IEP. The district properly provided ESY services that ensured the student continued to receive FAPE during the summer of 2018.
Whether the district properly conducted a reevaluation of a student with a disability.
The purpose of a reevaluation is to determine continuing eligibility for special education and to gather information to determine the nature and extent of the special education services that the student requires. (34 CFR § 300.15). A reevaluation must be conducted at least once every three years unless the parent and the district agree that a reevaluation is unnecessary. Districts must reevaluate a student with a disability if the educational or related services, needs of the student, including their improved academic achievement and functional performance, warrant a reevaluation, or if the student’s parent or teacher requests a reevaluation. A reevaluation may not occur more than once a year unless the district and parent agree otherwise. (34 CFR § 300.303).
Within 15 business days of sending the notice of reevaluation, the district must send the student’s parent a request for consent for additional testing or notice that no additional testing is necessary. The IEP team must convene and determine eligibility within 60 calendar days of receiving parental consent for reevaluation or notifying parents that no additional assessments are needed. (Wis. Stat. §§ 115.777-115.78).
On September 24, 2018, the district sent a notice of reevaluation for the student. The IEP team met in person, with the complainant participating on the telephone on October 12, 2018, to review existing data. The team agreed standardized academic assessments were unnecessary but wanted to conduct current observations, assess the student’s communication skills, and gather additional information to use for post-high school transition purposes. The district sent the notice and request for consent to both parents electronically on October 12, 2018. The student’s other parent provided consent to conduct the assessments on October 24, 2018, and the district received the returned consent form on October 29, 2018. However, the IEP team did not convene to determine the student’s eligibility until January 10, 2019, which is more than 60 calendar days after receiving consent for evaluation from the other parent. The district did not properly conduct the student’s reevaluation in a timely manner. The district acknowledges this error. Given the limited data gathered during the delayed reevaluation, the fact that the delay took place in part over a holiday break, and the fact that the services in the resulting IEP were nearly identical to the IEP in place before the reevaluation, no student-specific corrective action is required.
Since receiving this complaint, the district has conducted training activities to ensure reevaluations are completed within 60 calendar days of receiving parental consent for revaluation. No additional district-wide corrective action is required. The department will conduct activities to verify the district is currently in compliance with this requirement.
Whether the district properly determined the student’s placement in the least restrictive environment.
Under Wisconsin law, IEP teams, including parents, determine special education placements for students with disabilities. The IEP team must meet to determine each student’s placement at least annually. In determining the educational placement of a student with a disability, the IEP team must ensure that the student is educated in the least restrictive environment (LRE) with students who are not disabled to the maximum extent appropriate. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student’s IEP team must determine the least restrictive environment for the student and document placement options considered and rejected and the reasons why they were rejected. (34 CFR §§ 300.114-116, 300.503, Wis. Stat. § 115.78).
During IEP team meetings on January 10, January 16, and February 18, 2019, the student’s IEP team determined that education in regular classes with the use of supplementary aids and services as appropriate for the majority of the student’s instruction, but the student continued to need specialized instruction in Math, English Language Arts, and Adaptive Physical Education in a special education environment in order to receive FAPE. The team determined that due to the student’s disability, the student required a small group setting, individualized instruction, repetition, additional time to understand and grasp concepts, additional practice applying abstract concepts, and time to fill in gaps in foundational knowledge. The team determined that given the student’s disability-related needs, educating the student in Math, English Language Arts, and Adaptive Physical Education in the regular education environment with the use of supplementary aids and services could not be achieved satisfactorily. The district properly determined the student’s placement in the least restrictive environment.
Whether the district properly developed the student’s postsecondary transition plan.
Beginning the school year when the student turns age 14, and updated each year after, the IEP must include a statement of appropriate, measurable postsecondary goals for the student based on age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills. The IEP must also include transition services, including courses of study needed to help the student reach those goals. (Wis. Stat. § 115.787[g]). In Wisconsin, the postsecondary goals, transition services, and course of study are documented together in a form called the postsecondary transition plan (PTP).
According to the student’s PTPs in effect during the time period relevant to this complaint, the student’s postsecondary education goal was to attend a two-year university or college. The PTPs also include appropriate, measurable postsecondary goals in employment. The student’s IEP team determined the student did not need a postsecondary goal in independent living skills. The complainant believed the student’s participation in Math and English Language Arts in the special education environment would impede the student’s ability to meet this goal. The PTP also included transition services and a course of study to allow the student to reach the postsecondary goals, including classes in reading skills and life skills math. On February 18, 2019, the IEP team met to update the PTP to document the complainant’s concerns, but the IEP team did not change the student’s postsecondary goals or course of study. The student’s transcript demonstrates that the course of study will provide the student with appropriate English and Math credits. The IEP team determined an appropriate course of study to assist the student in meeting postsecondary goals. The district properly developed the student’s postsecondary transition plan.
Whether the district properly determined the student’s participation in statewide assessments.
A student with the most significant cognitive disability may participate in alternate statewide assessments aligned with the alternate academic content standards for the grade in which the student is enrolled. Wisconsin defines a student as having a most significant cognitive disability if the IEP team reviews the student’s records and determines the following: the student is typically characterized as functioning at least two and a half to three standard deviations below the mean in both adaptive behavior and cognitive functioning; the student performs substantially below grade-level expectations on the academic content standards for the grade in which they are enrolled, even with the use of adaptations and accommodations; and the student requires extensive, direct, individualized instruction and substantial supports to achieve measurable gains, across all content areas and settings. As part of the IEP team process, districts must ensure parents are informed that their students’ academic achievement will be measured based on alternate academic content standards and how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma. (30 CFR § 200.6[c], 34 CFR § 200.6[a][ii][B], 34 CFR § 200.6[d], Wis. Stat. § 115.787[e]).
The complainant argues that the IEP team did not utilize or explicitly discuss the Participation Guidelines for Alternate Assessment form during the student’s IEP team meetings, and the district made an inaccurate determination that the student was a student with the most significant cognitive disability. Other members of the student’s IEP team consistently recalled that while the form itself was not completed at the meetings, the team discussed the student’s current participation in the alternate curriculum, past participation in the alternate assessment, the standard for having a most significant cognitive disability and how it applied to the student, the impact of this determination on the student, and what assessment the student would take. The district properly determined the student’s participation in statewide assessments.
Whether the district properly responded to a parent’s request for a meeting of the student’s individualized education program (IEP) team.
The parents of a child with a disability have the right to request an IEP team meeting at any time, and districts must grant any reasonable parent request. The district must respond to the parent’s request within a reasonable amount of time and schedule the meeting at a mutually agreed on time and place. (34 CFR § 300.322). School districts must provide parents prior written notice when refusing to take action requested by a parent. The notice must contain certain requirements, including a description of the action refused, an explanation of why the district refuses to take the action, other options considered, and why those options were rejected. (34 CFR § 300.503[a]).
On October 25, 2018, the complainant questioned the relevance of a field trip related to the student’s reading curriculum and asked for an IEP team meeting to discuss the student’s program. District staff believed the complainant’s concerns were related to the student’s reading curriculum, and they responded to the parent, explained the relevance of the field trip to the student’s IEP goals, suggested that the complainant review the student’s upcoming progress report and contact them if they had additional questions. The complainant responded, asking if the district was denying her request for an IEP team meeting, and district staff did not respond. District staff did not receive an additional request for an IEP meeting after the progress reports were issued or in subsequent non-IEP team meetings and incorrectly assumed the complainant no longer desired an IEP team meeting regarding the reading curriculum. District staff and the complainant are in frequent contact, and many communication streams happen simultaneously. In addition, the district indicated the IEP team had recently met on September 30, 2018, and October 12, 2018, and had only been implementing the student’s IEP for ten school days when the complainant requested an IEP team meeting. Regardless, parent participation and prior written notice are crucial requirements of special education law. If the district had reason to refuse the parent request, they should have done so by issuing a notice containing all required elements. The district failed to properly respond to a parent’s request for an IEP team meeting on October 25, 2018.
Within 30 days of this decision, the district must review and, if necessary, revise district policies and procedures to ensure the district properly provides prior written notice in response to parent requests. The district must submit the results of this review to the department by December 28, 2020.
The complainant argues that the district inappropriately imposed a time limit on the IEP team meeting on January 16, 2019, and refused to reconvene the IEP team meeting after a request in writing in late January 2019. On January 10, 2019, the IEP team met for one and a half hours and reconvened on January 16, 2019, for two hours to review the results of the student’s reevaluation, develop the student’s annual IEP, and develop the student’s PTP. While districts must allow for meaningful parent participation, nothing in federal or state special education law prohibits a district from establishing a reasonable time limit for individual meeting sessions. After the January 16, 2019, IEP meeting, the complaint requested another meeting. The district responded by asking the complainant to provide more information about the need for another IEP team meeting. When the complainant filed this IDEA state complaint with additional information about the need for an IEP meeting on January 30, 2019, the district agreed to reconvene the IEP team to discuss the complainant’s concerns. The IEP team met to address those concerns on February 18, 2019. The district properly responded to a parent’s request for an IEP team meeting in January 2019.
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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support