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IDEA Complaint Decision 19-066

On September 23, 2019 (form dated September 20, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district:

  • Since May 2019, properly developed the individualized education program (IEP) of a student with a disability regarding the student’s achievement in math; and
  • Since the beginning of the 2019-2020 school year, properly implemented the IEP of a student with a disability.

Since May 2019, did the district properly develop the individualized education program (IEP) of a student with a disability regarding the student’s achievement in math?

Each student’s IEP must contain a statement of special education services that will be provided to allow the student to advance towards attaining annual goals, be involved in and make progress in the general curriculum, and to be educated with nondisabled students. (34 CFR § 300.230 [4]). The IEP must be reviewed periodically, and at least annually, to determine whether the student’s goals are being achieved and revised as appropriate to address any lack of expected progress. (34 CFR § 300.324). A school district must ensure the parent of a student with a disability is a participant on the IEP team and must take steps to ensure one or both of the student’s parents are present at each IEP team meeting or are afforded the opportunity to participate by other means. The parent must be provided written notice a reasonable time before an IEP team meeting. (34 CFR §§ 300.321 and 300.322; Wis. Stats. § 115.78).

Historically, the student who is the subject of this complaint has been achieving at or above grade level in math, and the student’s IEP has not identified disability related needs in the area of math. The spring 2019 Wisconsin Forward exam results showed the student’s math performance at a basic level. At an IEP meeting on August 19, 2019, attended by the parent, the IEP team discussed the parent’s concerns about the student’s math scores. District staff told the complainant the Forward Exam was not the best predictor of current skill level or progress in the curriculum. The IEP team noted the student had strong academic skills in math, as demonstrated by other tests and benchmark measurements. For example, the IEP team noted the student met the age/grade level math benchmark on the fall of 2018 ACT Aspire Test and the spring of 2019 ACT Aspire Test. The IEP team noted the student met grade-level performance in mathematics and had made significant progress over the course of the 2018-19 school year without any specially designed instruction in math. The district properly developed the student’s IEP regarding math.

Since the beginning of the 2019-2020 school year, did the district properly implement the IEP of a student with a disability?

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on the 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. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided, as described in the IEP. (34 CFR §§ 300.320 and 300.323).

The student’s IEP developed on August 19, 2019, included several supplementary aids and services. For example, the student would have access to an alternative place to eat lunch when the student needed a quiet place to eat and to accommodate sensitivity to food smells. The student was to have access to a quiet room when tired or overwhelmed, a designated safe spot when dysregulated, and classroom buddies or lunch buddies to model age appropriate social skills throughout the school day across all environments. The IEP also referenced the behavior intervention plan (BIP) and crisis plan that had been developed to assist staff in supporting the child during moments of dysregulation.

The parent cited the district’s failure to provide proper accommodations for the student on the first day of school, September 3, 2019, when the student was not given a low noise location to wait before school started. Instead, the student was seated on a bench in the hallway due to food smells in the cafeteria. The district admitted the first day was chaotic as students were crowded in the hallway due to the rainy weather outdoors. The district noted it did not provide a quiet environment for the student on the first day, but it did take steps on the next school day to ensure the student had a quiet environment in which to transition to her first class of the day.

On September 6, the student became dysregulated and eloped from the school. The parent alleges that the district did not follow the crisis plan. However, the department’s investigation finds staff followed the student at a distance and at a slow pace to ensure the student’s safety and safe return to school as outlined in the student’s crisis plan. The district called to inform the parent of the incident as required by the student’s crisis plan. The district properly implemented the crisis plan in the student’s IEP on September 6, 2019.

The complainant also alleged the district failed to provide a quiet place for lunch for the student and lunch buddies as required by the IEP. The district stated the student had a choice of three quiet places to eat lunch—a sensory room, a bench outside an unused hallway, and a table outside the wellness center. Each location is quiet and away from the food smells of the cafeteria. The parent noted the district did not provide a lunch buddy for the student on September 6, 2019. Although the district did not have a lunch buddy in place on September 6, 2019, the district has provided one every other day in accordance with the IEP.

The parent also reported an incident on September 16 in which a district staff person upset the student during a transition at the end of the school day. According to the parent, the staff member took preferred items out of the student’s hands abruptly rather than foreshadowing the transition to the end of the school day. The parent stated that this was contrary to the IEP requirement that an adult provide 1 to 1 support when implementing transitions and a check-in and check-out process for 10-15 minutes prior to a change in activities. According to the staff member, the student was provided transition time at the end of the school day to engage in the preferred activity. At the end of the day, the staff member informed the student it was time to finish and foreshadowed when the student had five minutes left, and also two minutes left before transitioning. The staff member did not provide the 10-15 minute check-out because the parent was present and had taken control of the student. The department’s investigation did not find evidence the teacher took the preferred items from the student’s hands, and the IEP provisions were followed. The district did not properly implement the student’s IEP when the student was not provided a quiet environment on the first day of school, and a lunch buddy was not provided on September 6th.

The district took immediate steps to rectify the implementation errors in the student’s IEP. As such, no student-specific corrective action is required. Within 30 days of this decision, the district must submit to the department a corrective action plan to ensure all IEPs are fully implemented on the first day of school.

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 11/21/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mm

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