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IDEA Complaint Decision 19-037

On May 30, 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 issues are whether the district, since May 30, 2018:

  • Properly developed the individualized education program (IEP) of a student with a disability; and
  • Properly implemented the (IEP) of a student with a disability.

School districts must provide each student with a disability a free appropriate public education (FAPE) [34 CFR §300.101(a)]. A school district meets their obligation to provide FAPE to each student with a disability, by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the program. The IEP must include clear descriptions of the services to be provided, as well as the amount, frequency, location, and duration of services, so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities [34 CFR §300.320(a)].

On May 2, 2018, the IEP team met and developed the student’s IEP, which was implemented on May 9. The IEP included a statement that “the team will review (the student’s) fall schedule in September 2018 to ensure (the student) is in co-taught classes.” The IEP team did not reconvene in September 2018, and the team did not review the student’s schedule to ensure enrollment in co-taught classes. The district acknowledges that they do not offer Geometry as a co-taught class, and the student was not placed in a co-taught Geometry class. The district also acknowledges that the student’s IEP was not provided to at least one of the student’s teachers until three weeks after the student began attending his class.

The parent expressed concerns about the student and the IEP team met on December 7, 2018. This was not considered to be an annual review of the student’s IEP. At that meeting, district staff explained that the student was receiving classroom instruction at the beginning of Geometry class and was supported both in the classroom and in a special education resource room setting. District staff attempted to explain how the student’s assignments were modified by the resource teacher. However, district staff and the parent had different understandings about the meaning of “modified assignments, tests, and quizzes.” The IEP team revised the student’s IEP to specify that the modified assignments, tests, exams, and quizzes to include “no more then [sic] 8 questions” and “redo all work if 80% or less.” However, these revisions were not written with enough specificity to ensure the district’s commitment of resources was clear to the parent and all those responsible for IEP development and implementation.

During the IEP team meeting on December 7, the IEP team also revised the IEP to include the following supplementary service: “When eyes closed tap [student’s] desk and encourage to take a break. [Student] is not sleeping. This is a signal that [student] is overwhelmed anxiety symptoms.” Other supplementary services maintained from the previous IEP included breaks and supervised pacing “when needed.” The revised IEP also deleted the references to ensuring the student was in co-taught classes in September 2018.

The parent alleges that the student was not provided with the supervised pacing on at least two school days during the 2018-19 school year. Interviews with district staff confirm that it is common practice to allow all students the opportunity for supervised pacing, and there were occasions when the student did not respond to the desk taps and did not want to take a break or engage in supervised pacing. The frequency and amount of the breaks, supervised pacing, and taping on the desk “when needed” is not specific enough to allow the commitment of resources to be made clear to all IEP team members and those responsible for implementation.

The parent’s understanding was that the student was supposed to meet with the case manager for 15 minutes on Friday of each week. Interviews with district staff confirm that while the weekly check-ins did not always happen on a particular day, the case manager checked in with the student for 15 minutes each week in general education classes. This service was consistently implemented as required by the student’s IEP.

As a result of the December 7 revision to the student’s IEP, extended time was removed from the statewide assessment accommodations form although it continued to appear in the supplementary aids and services section. On February 20, the student took the statewide assessment, and the student was not provided with extended time. When district staff realized this error, they reached out the parent and on February 21, revised the form to allow the student to receive extended time on the statewide assessment. The student took the assessment again with the required accommodations during another test date in Spring 2019.

On December 11, a follow-up meeting was held. This meeting was not an IEP meeting and did not result in any changes to the student’s IEP. During this meeting, district staff agreed to provide the parent upon request with copies of the student’s classwork, tests, and quizzes and to notify the parent when the student’s grades dropped below a certain grade, or there were a certain number of missing assignments. However, these agreements were not part of the student’s IEP and were not considered required services for providing FAPE.

School districts must ensure the IEP team reviews the student’s IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved and revise the IEP, as appropriate [34 CFR §300.324(b)]. School districts must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate [34 CFR §300.321(a)(1)]. School districts must also keep a record of the attempts to arrange a mutually agreed upon time and place [34 CFR §300.322(d)].

On April 29, 2019, district staff prepared the paperwork for an annual IEP meeting to be conducted on May 10, 2019. In order to meet the requirement to review the IEP at least annually, the IEP team should have met prior to or on May 2, 2019, which did not occur. The parent was not provided with a written invitation to the May 10 IEP team meeting, and therefore the IEP team meeting was rescheduled for May 30.

There is evidence that on May 16, the invitation for the May 30 IEP team meeting was sent to the parent. However, the invitation erroneously stated that the meeting would occur on May 10. There is some evidence that district staff may have attempted to communicate with the parent about the May 30 meeting, but these limited attempts to notify the parent were not sufficient to keep a record of the attempts to arrange a mutually agreed upon time and place to meet. The parent was unavailable to attend the May 30 IEP team. The district failed to properly develop the May 30, 2019, IEP when the parent was not properly afforded the opportunity to attend. The student’s IEPs were not properly developed and implemented during the 2018-2019 school year.

Within 30 days of the date of this decision, the district must reconvene the IEP team and conduct an annual review of the student’s IEP and provide the parent with proper notice of the meeting. In doing so, the IEP team must ensure that all special education services are described with sufficient clarity. The student’s IEP should not include any accommodations that will be provided as part of the general education curriculum for all students. The IEP team must also consider whether the student requires compensatory services for the failure to properly develop and implement parts of the IEP throughout the 2018-19 school year, and document the results of that discussion. The district must take steps to ensure that one or both of the parents are present at the IEP team meeting or are afforded the opportunity to participate and keep a detailed record of the attempts to arrange a mutually agreed upon time and place. Within 10 days of the date of the meeting, the district must provide the department with a copy of the revised IEP, documentation of the discussion of compensatory services, a copy of the notice of the IEP team meeting, and documentation of the steps to ensure parent participation.

Further, within 30 days of the date of this decision, the district must develop a corrective action plan (CAP) to ensure the district properly develops and implements IEPs, at least annually conduct a review of the student’s IEP, properly notifies parents of IEP team meetings, affords parents an opportunity to participate in the development of the IEP, and keeps a record of the attempts to arrange a mutually agreed upon time and place.

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.

Sincerely,

//digitally signed by BVH 7/29/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

BVH:cms

For questions about this information, contact DPI Sped Team (608) 266-1781