On April 1, 2019, 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 issue is whether the district, during the 2018-2019 school year, properly developed and implemented the individualized education program (IEP) for a student with a disability.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet the obligation to provide FAPE to a student with a disability, in part, by providing the special education services specified in the student’s IEP. School districts must ensure staff responsible for implementing the student’s IEP have access to IEPs and are informed of their specific responsibilities. Each student’s IEP must include a statement of special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. All services must be provided as described in the IEP. If the IEP team determines a student needs assistive technology devices to enable the student to be educated with nondisabled children to the maximum extent appropriate, the district must provide this device at no cost to the parent [34 CFR 300.320 and 324(a)(2)(v)].
The IEP team of the student, who is the subject of this complaint, met to update the student’s IEP on December 19, 2018. The student uses assistive technology to communicate with others using a device called a Dynavox. The IEP indicates the student requires minimal to moderate assistance to use the Dynavox. While the Dynavox is mentioned several times in various places in the IEP, the IEP does not provide a description of the amount and frequency to make the district’s commitment of resources clear. As such, the district did not properly develop the student’s IEP regarding the provision of the student’s assistive technology needs. Additionally, the student’s family purchased the Dynavox through their private insurance. Staff noted the student often forgot to bring the device to school, or the device was not always charged. The district is responsible for providing FAPE at no cost to the parents. By relying on the student’s parents to provide the device, the district did not properly implement the student’s IEP.
In addition, the December 2018 IEP included the service of “1 to 1 Educational Assistance” for the student as a supplementary aid and service with a frequency and amount of “all day every minute of the 7.5 hours at school and in the community.” The IEP team also wrote that the student “needs an adult with (the student) at all times. This person ensures that (the student) is safe and is meeting (the student’s) needs.” The district properly developed the IEP by including a clear description of the frequency and amount for the provision of one-to-one assistance.
The parent visited the student’s classroom on March 15, 2019, after attending a meeting at the school. When the parent brought the student into the classroom, the teacher invited the student to sit at a table with the teacher and other students. The educational assistant in the room was helping another student. District staff stated they believed that allowing the student to sit at a table with the teacher and other students without 1 to 1 educational assistance met the requirements of the IEP. However, since the teacher is responsible for multiple students, this arrangement does not match the description of the service and its amount and frequency as described in the IEP. The district did not properly implement the student’s IEP regarding the provision of the Dynavox and the provision of one-to-one assistance
Within 30 days of this decision, the district must conduct an IEP team meeting to review and revise the IEP to include a clear commitment of district resources regarding the student’s assistive technology needs. The IEP team must also determine if compensatory services are needed for the student as a result of the district’s failure to implement the student’s IEP regarding the provision of the Dynavox and the provision of one-to-one assistance. The district must immediately provide an assistive technology device for the student in order to properly implement the IEP. The district must provide the department a copy of the revised IEP documenting these determinations within 10 days of the date of the IEP team meeting.
//signed BVH 5/17/2019