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IDEA Complaint Decision 19-055

On August 19, 2019 (form dated August 7, 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 August 19, 2018:

  • Properly developed an individualized education program (IEP) for a student with a disability based on the student’s unique needs and reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances; and
  • Properly provided the parent prior written notice a reasonable time before the district proposed to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education (FAPE) to the student.

Whether the district, since August 19, 2018, properly developed an IEP for a student with a disability based on the student’s unique needs and reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances.

School districts must provide a free appropriate public education to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program set forth in the IEP.

On October 22, 2018, the student’s IEP team met to determine whether the student was achieving annual goals and discuss several topics related to revisions to the IEP. Specific to the issues raised in this complaint, the IEP team discussed the student’s postsecondary interests, statewide assessments, placement, academic achievement, and functional performance.

Postsecondary Interests

The student did not attend the IEP team meeting on October 22, 2018. A member of the IEP team who works closely with the student spoke with the student in advance of the meeting to gather the student’s input on postsecondary interests and plans. The information that the IEP team member provided on behalf of the student included, in relevant part, that the student was unsure about college. At the meeting, the parent explained that the student needed to go to college in order to achieve his career ambitions. The IEP team included a statement about the student’s uncertainty regarding college attendance in the document and identified college attendance as a postsecondary goal in the student’s postsecondary transition plan. The district properly developed the student’s IEP with respect to the student’s postsecondary interests.

Statewide Assessments

For the duration of the time period covered by this decision, the IEPs in effect indicates the student was considered to be a student with the most significant cognitive disabilities participating in curriculum aligned with the state’s alternate achievement standards. At the meeting on October 22, 2018, the IEP team discussed whether the student would participate in the alternate assessment in the spring of 2019. The IEP team agreed that, notwithstanding the student has participated in the alternate assessment in the previous year, the student would participate in the regular assessment. The IEP team appropriately documented this decision. The district properly developed the student’s IEP with respect to statewide assessments.

Placement, Academic Achievement, and Functional Performance

Since 2015, the student attended a private school pursuant to the IEP placement. During the October 22, 2018, meeting, the IEP team discussed the student’s progress in various functional and academic skills, including a reduced aversion to academic tasks, increased reading ability, and improved peer relationships. The student’s parent attributed much of this progress to the student’s recent participation in after school tutoring, particularly the phonics-based methodology employed by the tutor, the one-to-one nature of the tutoring, and the tutor’s focus on the student’s writing grip. The IEP team also discussed the parent’s concerns related to the student continuing to lag behind same-aged peers in academics, the student’s need for one-to-one tutoring in academics using the methodology employed by the current tutor, the student’s lack of stamina for tutoring after a full day at the private school, the student’s exposure to negative peer interactions at the private school, and the parent’s concern that the student’s aversion to academic tasks is a learned response that stems from incidents that occurred in previous educational settings. Related to these concerns, the parent requested the IEP team discuss and gather information about possibly reducing the amount of time the student spent daily at the private school and adding academic tutoring in the afternoon for the upcoming spring semester. The IEP team agreed to gather more information on this proposal and to revisit the decision at a future meeting.

In accordance with this discussion, the IEP produced after the meeting did not alter the student’s placement at the private school. The IEP sufficiently documented the student’s academic and functional performance, including the parent’s concerns, in a manner consistent with the discussion at the meeting. In connection with the student’s goals, the program summary contained, in weekly allotments, 330 minutes of specially designed instruction, 120 minutes of counseling services, 120 minutes of occupational therapy, and 120 minutes of speech and language therapy. Additionally, during the 2018-19 school year, the student’s reading curriculum included phonics-based instruction. The district properly developed an IEP with respect to the student’s academic and functional performance.

In January 2019, the district revised the IEP, in relevant part, to reduce the amount of time at the private school and add specially designed instruction in reading and math provided by a tutor at an offsite location. Prior to revising the IEP, the district communicated with and obtained agreement from the IEP team members, including the parent, and then revised the IEP without conducting an IEP team meeting. The revision was consistent with the parent’s request and ensuing discussion at the October 2018 meeting; however, the revision constitutes a change in placement, and the IEP team discussed but did not determine this change in placement at the meeting. Changes to a student’s placement must be determined through an IEP team meeting. (Wis. Stats. § 115.78[2]) Accordingly, the district did not properly develop the student’s IEP with respect to the revised placement determination.

Whether the district, since August 19, 2018, properly provided the parent prior written notice a reasonable time before the district proposed to initiate or change the identification, evaluation, or educational placement of the student or the provision of FAPE to the student.

The student’s IEP team met on October 22, 2018, and developed an IEP with an implementation date of October 23, 2018. The parent received a copy of the IEP through the mail several days later.

Following the development or revision of an IEP, the student’s parents must receive prior written notice a reasonable time prior to its implementation. (34 CFR 300.503) The district did not provide the parent prior written notice before implementing the student’s revised IEP. Consequently, the district failed to provide prior written notice a reasonable time before proposing or refusing to initiate or change the identification, evaluation, educational placement of the student, or the provision of FAPE to the student.

Corrective Action

For student-specific corrective action, the district must notify the parent that it erroneously revised the student’s placement in January 2019 without an IEP team meeting and offer to convene an IEP team meeting to determine placement. Within 20 days of this decision, the district must provide the department with documentation of the notification and offer to convene an IEP team meeting.

Additionally, within 30 days of this decision, the district must submit a corrective action plan for the department’s approval, designed to ensure that changes to a student’s placement are determined through an IEP team meeting. The corrective action plan must also ensure that the district provides prior written notice a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, educational placement of a student, or the provision of FAPE to a student. The district has previously been identified as having noncompliance in these same areas. Consequently, the department will conduct additional monitoring following the completion of the district’s corrective actions.

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. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//signed by BVH 10/18/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:nam

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