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IDEA Complaint Decision 19-074

On October 10, 2019 (form dated October 9, 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 the complaint. The issues are whether the district, beginning on October 10, 2018:

  • Properly implemented the individualized education program (IEP) of a student with a disability;
  • Properly responded to a parent’s request for an evaluation for physical therapy; and
  • Properly enabled a student with a disability an opportunity to participate in extracurricular activities including music concerts.

Whether the district properly implemented the individualized education program 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. (4 CFR §§ 300.320 and 300.323).

The IEP team of the student who is the subject of this complaint met to review and revise the IEP on November 29, 2018. The IEP stated that the student, prior to having lunch at school, would have the opportunity to go into the lunchroom a few minutes before the others arrived and would have headphones available if it became too loud. He could leave if it became too loud and have lunch in a designated quiet spot.

The parent assumed the teacher would be eating lunch with the student, but this was not a determination made by the IEP team, and the teacher’s schedule did not allow it. The teacher assured the parent she would provide headphones for the student and would find a quiet place for him to eat in the school office. The student’s teacher prepared a social story to enable the student to be prepared for whatever choice he made regarding the lunch period. School staff communicated regularly with the student’s parents about the student’s choices during the lunch period. Staff members helped the student have lunch with his peers in the lunchroom when he was comfortable, provided headphones, or helped him have lunch in the designated quiet setting when needed. The district properly implemented the IEP regarding the choices the student had regarding the lunch period.

The November 29, 2018, IEP also indicated that the student’s day would start when parents or caregivers could bring him in. The team wrote that the student “may need to be met in the parking lot outside of door C in order to relieve anxiety and ease the transition. Parents will need to let someone know when [the student] will be arriving in order to have someone meet [the student].” Door C is an alternate entrance to the school, closest to the student’s classroom. The front door near the office was the door most children used to enter the building. When the parent called ahead of time, someone met the student at Door C. The district properly implemented this portion of the student’s IEP.

The student’s IEP also included information about a sensory menu for the student. A sensory bucket of items was made available to the student to be used in the classroom. The parent was concerned the sensory items were not being provided. An observation report written in the fall of 2018 by a staff member noted the absence of a sensory bucket in the classroom. However, the student’s teachers indicated that this observation was in error and that the sensory bucket was in the classroom on a shelf at the student’s chest level. The staff member who wrote the observation report noted the student used a chew topper during the observation, and additional sensory items were available in a chair cover pocket the student could access. The district properly implemented the student’s IEP regarding the availability of the sensory items for the student in the classroom.

Whether the district properly responded to a parent’s request for an evaluation for physical therapy.

A parent of a student with a disability may request a reevaluation. (34 CFR §300.303). A reevaluation may not occur more than once a year unless the parent and the school district agree otherwise. Id. The purpose of the reevaluation is not only to determine if the student continues to be eligible for special education, but it is also used to determine the nature and extent of the special education and related services the student requires. (34 CFR §300.15).

The parent stated that she requested an evaluation for physical therapy during the IEP team meeting held on November 29, 2018. An email from an outside musical therapist indicated that there was some discussion of the evaluation during the meeting. None of the four district staff members in attendance at the November IEP meeting had any notes or recollections of a request for a PT evaluation. On January 15, 2019, the parent sent an email to district staff clearly requesting an evaluation for physical therapy. The district promptly began the evaluation process after it received the request in January from the parent. The district properly responded to the parent’s request for a physical therapy evaluation.

Whether the district properly enabled a student with a disability an opportunity to participate in extracurricular activities including music concerts.

The complaint stated that the student was denied the opportunity to participate in a December music concert. The concert was not considered an extracurricular activity, but was instead part of the general music class and occurred during the school day. Due to anxiety and difficulty transitioning to school before lunchtime, the student often missed his morning music class. At parent-teacher conferences in November 2018, the special education and regular education teachers discussed the concert with the parent and presented options for the student as the student had been absent from the music classes when the other students were learning the material for the concert. The student’s parents and teachers discussed having the student stand with classmates at the concert, having the student sit in the audience, or not attend the concert. The parent and the student’s music therapist was also given the opportunity to attend the music class to see what was planned for the performance so they could learn the motions that went with the songs and help the student prepare for the concert. The student was appropriately provided an opportunity to participate in the December concerts.

The student’s parent was also concerned the student was denied the opportunity to participate in a spring music concert. This concert was performed by an outside group and was not part of the student’s music class or part of the general curriculum. This performance was advertised to all parents and attendance was optional. The student was not denied an opportunity to participate in the spring concert.

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 the department’s website at http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//signed by BVH 1-17-20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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