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IDEA Complaint Decision 19-076

On October 14, 2019 (form dated October 11, 2019) and October 25, 2019 (form dated October 22, 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 this complaint. The issues pertain to the time period since October 14, 2018, and are included below.

Whether the district properly ensured physical education was made available to a student with a disability enrolled full time in a separate facility.

In Wisconsin, high school students must earn 1.5 credits of physical education for graduation. (Wis. Stats. § 118.33[1][a]1.e). Physical education services, specially designed if appropriate, must be made available to every student with a disability if they are provided for all students. If a student is enrolled full time in a separate facility, the school district must ensure the student receives appropriate physical education services. (34 CFR §300.108).

The student who is the subject of this complaint is 18 years old and has been placed by the individualized education program (IEP) team full time in a private school for students with disabilities for several years. The student’s parent is the adult student’s legal guardian. The student’s IEP in effect for the majority of the time covered under this complaint was developed at an IEP team meeting on October 22, 2018. The IEP includes a checked box indicating physical education was “not applicable.” No further information was provided in support of physical education being “not applicable” for the student. The district offers physical education to high school students. The district’s graduation policy indicates that in most situations, students require 1.5 credits of physical education to graduate from high school. The private school does not provide physical education. The district has stated that the student is involved in many physical activities throughout the school day, but there is no evidence the student’s IEP team discussed these activities as a way for the student to meet physical education requirements or as a substitute for them. Since October 14, 2018, the district did not ensure physical education was made available to a student with a disability enrolled full time in a separate facility.

Whether the district properly provided the parents of a student with a disability periodic reports on the progress the student is making toward meeting the annual goals

School districts must ensure periodic reports are provided to the parents of a student with a disability on the progress the student is making toward meeting each goal as specified in the student’s IEP. (34 CFR §300.320 [a][3][ii], §300.323[a]; Wis. Stat. §115.787[1], §115.787 [2][h]2).

The student’s IEP developed on October 22, 2018, contained annual goals in four areas: functional routines and independence, math, reading/writing/organizational skills, and vocational/post-secondary education/transition. All of the goals indicate progress will be provided quarterly, based on observations and other data collection methods. The district provided progress reports prepared by staff at the private school dated January 11 and 18, 2019; March 15 and 21, 2019; and May 31 and June 7, 2019. The reports were provided on a timely basis and contained information about the student’s progress on all goals and objectives in accordance with the student’s IEP. The district properly provided the student’s parent periodic reports on the progress the student made toward annual goals.

The student’s parent also raised concerns about not being provided with regular report cards with the student’s grades. Federal and state special education law does not include requirements about methodology or reporting of grades, and school districts have discretion in determining how grades are calculated and provided to parents.

Whether the district properly developed an IEP describing how the student’s disability affects the student’s involvement and progress in the general curriculum.

Each student’s IEP must include a statement about how the student’s disability affects the student’s involvement and progress in the general curriculum, i.e., the curriculum used by most students. (34 CFR § 300.320 [a][1]). IEP teams must also determine whether a student with a disability will participate in the statewide and district wide assessments aligned to the academic standards applicable to all students, or alternate assessments aligned to alternate achievement standards for students with the most significant cognitive disabilities. In Wisconsin, a student with a most significant cognitive disability is typically characterized as functioning at least two and a half to three standard deviations below the mean in both adaptive behavior and cognitive functioning and performs substantially below grade level expectations on the academic content standards for the grade in which they are enrolled, even with the use of adaptations and accommodations. In addition, a student with the most significant cognitive disability requires extensive, direct individualized instruction and substantial supports to achieve measurable gains across all content areas and settings. When an IEP team is discussing whether or not a student is a student with the most significant cognitive disability, the team should review documentation of how the student is currently performing on grade-level academic tasks. A student with the most significant cognitive disability who takes an alternate assessment aligned with alternate academic achievement standards may not be precluded from attempting to complete the requirements for a regular high school diploma. (34 CFR §300.160[d][2]).

The IEP in effect at the beginning of the time period covered by this complaint was developed on October 26, 2017. The IEP indicates the student participates full-time in the general education curriculum aligned with the general education standards that apply to all students. However, the IEP developed on October 22, 2018, indicates the student is a student with a most significant cognitive disability and participates in a curriculum aligned with alternate achievement standards. The IEP does not contain documentation in support of this change, and in a recording of the October 22, 2018, IEP team meeting provided by the student’s parent, there was no discussion among IEP team members of reasons for such a change. The IEP further explains the student’s disability adversely affects progress toward meeting grade-level standards, including reading. The IEP indicates that “based on (the student’s) autism-related needs and unique strengths, (the student) has shown the need for specific education with (the private school) that allows for (the student) to receive intense intervention in the areas of behavior and (the student’s) high needs in math and reading. The disability has an adverse effect on (the student’s) reading and mathematics as stated in the Present Level of Performance pieces and makes it very difficult to progress with (the student’s) grade-level peers.” However, the IEP does not include information about the expected levels of achievement for the student’s same age peers, nor does it describe how the student’s functional and academic skills differ from expected levels as a result of the student’s disability. In addition, the IEP does not include documentation of how the student actually performs on grade-level academic tasks.

At the meeting on October 22, 2018, the team discussed whether the student would take the statewide assessment based on alternate achievement standards, or the statewide assessment based on general education standards. Without discussing or determining whether the student is a student with the most significant cognitive disability, the IEP team, including the student’s parent, determined that the student would take the assessment based on general achievement standards with accommodations. The student’s parent indicated the student would need the scores from the assessment for post-secondary options, specifically college.

A meeting was held on June 12, 2019, to discuss extended school year (ESY) services for the student. The district administrator and a district special education teacher participated by telephone, while the student’s parent and the director of the private school met in person. The department staff listened to a recording of the meeting provided by the student’s parent. The student’s parent requested ESY services in part because the parent believed the student was credit deficient. The student’s parent asked for the student’s grade point average and credit status. The student’s parent also asked about the possibility of the student going to the district high school to work with a staff member on an online credit recovery program. The discussion that followed made it very clear that the student’s parent, private school director, and the district administrator did not have a shared understanding regarding the student’s plan for graduation. Taken together, these facts indicate the district did not properly develop the student’s IEP regarding how the student’s disability affects the student’s involvement and progress in the general curriculum since October 14, 2018.

Whether the district properly provided the parent of a student with a disability an opportunity to inspect and review all education records with respect to the identification, evaluation, educational placement, and provision of a free, appropriate public education (FAPE) to the student.

School districts must permit parents and/or adult students to inspect and review any education records that are collected, maintained, or used by the district. A school district must comply with a request for access to education records without unnecessary delay and before any IEP team meeting. In all cases, the school district must comply with a parent’s and student’s request within 45 days. Education records do not include records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. (34 CFR §§§ 99.10, 300.613, and 300.611[b]; Wis. Stats. § 118.125[2][a]).

On July 10, 2019, the district received a written request from the student’s parent for copies of all education records for the student. Among many other documents, the parent specifically requested all information in the student’s cumulative file from the district and from the private school. On August 28, 2019, district staff responded by providing all of the student’s registration records, exam results, transcripts, releases of information, disciplinary records, IEPs, referrals, evaluations, and other special education documents, and progress reports to the parent via email. The district staff member also explained the district was waiting for additional records from the private school, and those would be forthcoming. The letter also indicates the district was unable to locate records responsive to several of the parent’s requests, specifically, documentation showing the parent approved “pass/fail” grading for the student, documents related to physical education programming for the student, and “at risk” plans for the student. In September 2019, the district supplied additional records provided by the private school regarding the requests.

In early October 2019, the parent again requested additional documentation from the district. The district informed the parent it had provided all education records to the parent. Districts are not required to create records that previously did not exist to respond to a parent’s request for access to records. The district properly responded to the parent’s request to inspect and review the student’s education records.

Whether the district properly responded to a parent’s request for an IEP team meeting, including to discuss ESY services and improperly determined availability of services based on district capacity versus student needs.

A parent of a student with a disability may request an IEP team meeting at any time, and school districts should grant any such reasonable request. (34 CFR § 300.503). ESY services are special education and related services required by the student’s IEP and provided beyond the school term. A school district is required to provide ESY services to a student when the student requires such services to receive a free appropriate public education (FAPE). If the IEP team decides the child requires ESY services, the team must include in the student’s IEP, a description of the necessary ESY services to be provided, including the amount, frequency, and the duration of the services. The ESY services must be tailored to the unique needs of the student. (34 CFR § 300.106).

The student’s parent contacted the director of the private school via email on April 11, 2019, to discuss summer programming. In the email, the student’s parent wrote, “Even though we have reading and math covered with tutors for the summer, (the student) is so far behind in Humanities like History, Civics, Social Studies, etc… Do you know of any type of program either online or otherwise that could suffice as ESY?” The student’s parent asked for the director’s thoughts as to how online instruction with a tutor might occur.

The director of the private school communicated with district staff and the parent regarding options. On May 3, the director indicated the private school would offer the student 1:1 instructional sessions to work on social studies and science, two hours twice per week between July 22 and August 16. The district agreed to provide transportation to and from the sessions. On June 4, 2019, the private school director clarified the sessions would not be considered ESY, and provided four possible dates for an IEP team to discuss ESY. On Friday, June 7, the student’s parent responded with and chose a date for the meeting. On June 10, 2019, the district provided the parent with an invitation to an IEP team meeting, scheduled for June 12, 2019, with the purpose of reviewing/revising the student’s IEP for ESY.

At the meeting on June 12, the private school director indicated ESY services were not available at the private school over the summer, but that private school staff would provide some supplemental instruction for the student. The private school director did not characterize these services as ESY as they were not related to the student’s IEP goals. The district administrator repeatedly informed the parent that the meeting was not an IEP team meeting, and the student did not qualify for ESY. The student’s parent proposed the student work with staff from the district to complete computer-based coursework, but the district administrator indicated the district was not prepared to offer those types of services since the summer had already started, and staff were likely not available to provide such a service. The team did not discuss whether the student required ESY to receive FAPE. During the summer of 2019, in addition to private tutoring arranged by the parent at district expense, the student received 1:1 services from the director of the private school, as was discussed at the meeting.

The district did not properly respond to the parent’s request for an IEP team meeting to discuss ESY. District staff insisted the meeting on June 12th was not an IEP team meeting and was not prepared to have a discussion about the student’s eligibility for ESY services. District staff also could not determine whether any services could be made available given the district was on summer break, and staff was likely to be unavailable. The district did not properly respond to the parent’s request and did not properly determine the student’s eligibility for ESY services.

Whether the district properly provided the parent of a student with a disability an opportunity to participate in IEP team meetings, including an IEP team meeting held on October 17, 2019, including notifying the student’s parent early enough to ensure the parent will have an opportunity to attend, scheduling meetings at a mutually agreed upon time and place, and providing the required information in the notice of the meeting.

A district must take steps to ensure one or both of the parents of a child are present at an IEP team meeting or are afforded the opportunity to participate. The district must notify the parents of the meeting early enough to ensure they have an opportunity to attend and must schedule the meeting at a mutually agreed on time and place. An IEP team meeting may be held without a parent in attendance if the district is unable to convince the parents they should attend. (34 CFR § 300.322[a]).

On October 8, 2019, a district staff member emailed the student’s parent to schedule a time to conduct the student’s annual IEP team meeting and hold a three-year reevaluation. The district offered October 16 and 17 as possible dates for the IEP team meeting. On October 9, the student’s parent responded that due to health reasons, the parent was not going to be able to attend meetings for the next several weeks. On October 14, the district contacted the student’s parent, indicating the meeting would be held on October 17, and offered the parent the option to attend either by phone or in person. A written invitation was attached to the email. The parent responded on October 14, indicating that he was not available on October 17 and that he intended to participate in all IEP team meetings. The parent offered three additional dates: November 15, November 18, and November 22. The IEP team met without the parent present on October 17.

Given the parent’s indication he wished to attend the IEP team meeting, the district should have rescheduled the meeting in order to afford the student’s parent an opportunity to participate. The student’s most recent annual IEP team prior to this meeting was October 22, 2018; the district was aware a one-year deadline was approaching and thus felt compelled to hold the meeting to ensure the timeline would be met. However, the obligation to provide the student’s parent a meaningful opportunity to participate in the IEP team meeting is of utmost importance. In addition, the district did not contact the parent regarding the IEP team meeting until October 8, 2019. This did not give the district sufficient time to ensure the meeting would be held within the one-year annual IEP timeline since the parent was not able to attend.

Whether the district properly conducted a reevaluation of the student.

As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data. If the IEP team determines additional data are needed, the district must, within 15 business days of receiving the referral, request in writing parental consent for additional testing. The IEP team may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student has an impairment and needs special education. (34 CFR §§ 300.304-306).

On October 8, 2019, a district staff person contacted the parent via email regarding scheduling a meeting for a reevaluation for the student. The email indicated the district had time the next day, October 9, from 1:00-3:00 pm for the “assessment meeting,” which the district did not consider to be an IEP team meeting. The student’s parent was not able to attend the meeting. Via email, district staff proposed to conduct a variety of assessments, including behavioral and academic assessment for the reevaluation. The student’s parent indicated he would like to see testing done in areas of dysgraphia and dyscalculia. On October 14, 2019, district staff responded via email that “because you did not assent to the tests we suggested via email, school staff feel that no standardized testing is needed to determine continuing eligibility and educational implications and progress.” A few hours later, the student’s parent responded via email that he wanted additional testing to what the district had proposed. Despite the parent’s objections, the IEP team met on October 17, 2019, without the parent present and proceeded to discuss and complete the reevaluation.

The district did not provide the parent prior written notice of its intent to reevaluate the student and did not provide proper written notice of the testing it proposed to conduct. After hearing from the parent regarding testing, the district proceeded with the reevaluation without conducting any testing. The district did not properly conduct a reevaluation of the student. The student’s parent has requested an independent educational evaluation (IEE) of the student, which is in progress.

CORRECTIVE ACTION:

  • District staff must submit to the department by January 31, 2020, a plan for completing all of the following student specific corrective action by March 15, 2020.
  • Facilitate completion of the student’s IEE, including reviewing the results to ensure the student’s IEP contains appropriate services to address the student’s educational needs.
  • Review the student’s IEP to clarify how the student’s disability affects the student’s involvement and progress in the general curriculum, including whether the student should participate in instruction and assessment aligned to the general curriculum.
  • As part of this review, determine a plan for the student to receive physical education. This may include assigning credits to the student for past activities if consistent with district policy and practice.
  • Review the student’s educational placement at the private school for appropriateness in light of these determinations.
  • Discuss the student’s eligibility for ESY for the summer of 2020, and if the team determines the student is eligible, develop a clear plan for the student, including an appropriate schedule and staffing.
  • Determine whether compensatory services are required for the failure since October 14, 2018, to determine whether the student is a student with the most significant cognitive disability who should participate in instruction and assessment aligned with the alternate achievement standards, and how the student’s disability affects the student’s involvement and progress in the general curriculum.

The district must include the provision of bi-monthly progress reports to the department as part of the plan.

The district must also complete a district-level corrective action plan to address the following issues. The district must submit the proposed plan to the department by January 31, 2020, and obtain department approval of the plan before beginning corrective actions.

  • Review and, if necessary, revise district policies and procedures to ensure physical education is made available to all students currently placed full time in separate facilities.
  • Ensure IEP teams understand how to determine and document how the student’s disability affects the student’s involvement and progress in the general curriculum.
  • Ensure IEP teams consider and appropriately determine whether a student is a student with the most significant cognitive disability.
  • Ensure all ESY decisions are made considering appropriate factors, and early enough in the school year to provide for appropriate services.
  • Review and, if necessary, revise policies and procedures regarding scheduling IEP team meetings at mutually agreeable times and places to provide for meaningful parental participation.
  • The department will conduct a review of records from April -June 2020 to ensure the district is implementing these requirements appropriately.

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 12/13/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mhr

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