On June 10, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parents) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2018-2019 school year:
- Improperly predetermined the amount, frequency, and location of extended school year services for a student with a disability;
- Properly provided the student’s parents prior written notice in response to a parent’s request; and
- Properly conducted individualized education program (IEP) team meetings including required participants.
Improperly predetermined the amount, frequency, and location of extended school year services for a student with a disability.
A school district is required to provide extended school year (ESY) services to a student when the student requires these services to receive a free appropriate public education (FAPE). If the parent, or any other individualized education program (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 student requires ESY services in order to receive FAPE. The IEP team must determine and clearly describe the ESY services to be provided, including the amount, frequency, location, and duration of the services (34 CFR §§ 300.106 and 300.324). In determining ESY services, IEP teams must ensure that students receiving ESY services are educated in the least restrictive environment (LRE) (34 CFR 300.114).
In January, 2019, the parents asked district staff to discuss whether the student would participate in ESY during the coming summer recess. The student’s IEP team met on April 12. At the meeting, the team discussed ESY services for the student. District staff proposed an ESY placement for the student consisting of instruction from 9:45 a.m. to 12:45 p.m., three days per week, for six weeks, beginning June 25, 2019. The ESY services were to be provided at one of the district’s middle school buildings in a special education environment with the student receiving specially designed instruction in reading and math. The parents agreed with district staff as to the need for ESY services, but wished to discuss the location and duration of the services. In particular the parents felt the district’s ESY plan did not offer the student the opportunity to participate in ESY programming in the least restrictive environment. The parents suggested the team consider alternatives such as providing itinerant services to the student at a day camping program. The local educational agency representative indicated that he was not able to commit the district’s resources to such a plan and recommended an additional IEP team meeting to discuss placement. The IEP team met again on April 19 and May 13 to discuss the appropriate ESY placement. The team was unable to reach consensus regarding an appropriate ESY placement, at which point the district adopted the placement of instruction from 9:45 a.m. to 12:45 p.m., three days per week, for six weeks, beginning June 25, 2019. The parents ultimately did not have the student participate in the ESY services offered by the district.
A school district may not predetermine matters that are the responsibility of the student’s IEP team. The prohibition on predetermination does not prevent a school district from developing proposals for the IEP team to consider as long as the proposal is used solely for purposes of discussion and is not represented as a final decision. In this complaint, the district had developed, prior to the IEP team meeting, a proposal for what it believed to be an appropriate ESY placement for the student. The parents requested a different alternative. The parents assert the district should have considered placement options within the district’s day camping program. The IEP team considered the parents’ proposed day camping placement alternative and found it inappropriate to meet the student’s needs as it reduced the amount of services from the district’s proposal, the uncertainty of scheduling the services around camp activities, and the fact that itinerant services would result in one to one instruction with no opportunity for interaction with disabled or nondisabled peers. The district did not predetermine ESY services.
While the district appropriately denied the proposed day camp placement, the IEP team did not fully explore aspects of the student’s ESY plan critical to determining the least restrictive environment for the student. The team discussed, only in passing fashion, the student’s ESY goals and special education services. These issues form the basis of the central LRE question for IEP teams to resolve, namely why education in regular classes cannot be achieved satisfactorily with the use of supplementary aids and services. A discussion of these issues before attempting to determine where ESY would either have reinforced the appropriateness of the district’s initial proposal or led the team to explore other educational environments in which the services could be provided.
Within 30 days the district shall submit to the department a corrective action plan outlining the steps it will take to ensure IEP teams fully discuss all aspects of a student’s proposed ESY program relevant to the team’s LRE determination.
Properly provided the student’s parents prior written notice in response to a parent’s request.
Written notice must be given to the parents of a student with a disability a reasonable time before the local education agency (LEA) refuses to change the educational placement of the student (34 CFR § 300.530[a]). The notice must include a description of the action refused by the agency, an explanation of why the agency refuses to take the action, a description of the information used as the basis for refusing to take the action, a description of other options considered, and a description of other factors relevant to the LEA’s proposal (34 CFR § 300.530[b]). Following the April 19 IEP team meeting, the district provided the parents a placement notice and an electronic mail communication (dated April 23) which indicated the student’s ESY placement and rejecting the placement proposed by the parents. Following the IEP team meeting on May 13, the district provided the parents a form (dated May 20) titled, “Notice of Response to an Activity Requested by a Parent.” The Notice contained a description of the parent’s alternative ESY proposal and an explanation of why the district refused the parent’s alternative. The written notice provided May 20 was given a reasonable amount of time before the student’s ESY placement was to begin on June 25. The content of the May 20 notice contained sufficient information to adequately inform the parents of the reasons for refusing their alternate ESY proposal. The district provided student’s parents prior written notice in response to the parent’s request.
Properly conducted individualized education program (IEP) team meetings including required participants.
A student’s IEP team must include the parents of the student, a regular education teacher of the student, a special education teacher of the student, and a representative of the local educational agency (LEA) (34 CFR § 300.321[a][1]-[5]). Other persons may participate on the IEP team at the discretion of the parents or the LEA (34 CFR § 300.321[a][6]). Under certain circumstances the regular education teacher or the special education teacher may be excused from participation in the IEP team meeting (34 CFR § 300.321[e]). In this complaint, the parents assert that IEP team members were not properly excused from the April 12, April 19, and May 13 IEP team meetings. However, the evidence shows that each of the meetings included a regular education teacher of the student and a special education teacher of the student. The IEP team meeting attendance excusal provisions do not apply to the district staff members identified by the parents as missing from the meeting.
The representative of the LEA must be qualified to provide, or supervise the provision of, specially designed instruction, must be knowledgeable about the general education curriculum, and must be knowledgeable about and authorized to commit district resources (34 CFR §300.321[a][4]). Here the parents assert the representative of the LEA at the April 12 IEP team meeting was not authorized to commit district resources in regard to ESY. In fact the representative of the LEA was not prepared to commit district resources in the fashion that parents were requesting on April 12. As a remedy to this situation, the district agreed to a subsequent IEP team meeting with a different LEA representative that did have full authority to commit resources related to the student’s ESY programming. The subsequent meeting included an LEA representative authorized to commit district resources for ESY placements. No further student specific corrective action is required.
Prior to an IEP team meeting a LEA must inform the parents of the student who will be present at the meeting (34 CFR 300.322[b]). The student’s physical education teacher was listed as a participant on the invitations to the April 12 and April 19 IEP team meetings. The physical education teacher was not present at the April 12 and April 19 IEP team meetings. The evidence shows a district employee verbally informed the parents of the teacher’s absence prior to the April 12 meeting, but no notice was provided prior to the April 19 meeting.
Within 30 days, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure IEP teams include an LEA representative with full authority to commit resources, and district staff inform parents of absences of non-mandatory IEP team members and appropriately record IEP team participant attendance on IEP cover sheets.
This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.
Sincerely,
//signed 8/8/19
Barbara Van Haren
Assistant State Superintendent
Division for Learning Support
dec:pas