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IDEA Complaint Decision 19-078

On October 18, 2019 (form dated October 16, 2018), 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 issue is whether the district, during the 2019-2020 school year, properly implemented the individualized education program (IEP) of a student with a disability.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet the obligation to provide FAPE to a student with a disability, in part, by providing the special education services specified in the student’s IEP. Each student’s IEP must include a statement of special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe these services, so the level of the district’s commitment of resources is clear to parents and other IEP team members. At the beginning of each school year, each district must have an IEP in effect for each student with a disability. (34 CFR 300.320).

The student’s IEP in effect at the beginning of the 2019-20 school year was developed on November 13, 2018. The IEP team considered information from the previous school year, the student’s achievement on current district-level assessments, teacher observation data, and concerns of the student’s parent. The statement of the present level of academic achievement and functional performance detailed the student’s needs related to the student’s current performance in the areas of reading, math, writing, and functional behavior, and included information about how the student’s disability affects the student’s involvement in the general education curriculum. The IEP also includes information from the school audiologist that states, the student’s “hearing loss will adversely affect his hearing and speech discrimination abilities in the classroom especially in the presence of background noise. Due to the student’s disability related needs, the student may not have full access to the curriculum presented in a large group setting with background noise. Therefore, the student requires additional clarification in the small group setting with minimal background noise.” The IEP team developed annual goals related to reading, math, writing, and self-advocacy/clarification due to deaf and hard of hearing needs (D/HH). Each annual goal was measurable, addressed the student’s needs, and included how and when the parent would be informed of the student’s progress toward meeting the goal. The IEP included specialized instruction by a teacher trained to meet the student’s D/HH needs, supplementary aids and services to support the student in the special education and general education environment that include, but are not limited to, preferential seating close to the front of the classroom, frequent repetition and clarification of concepts and directions, access to speaker’s lips and facial expressions, repeat responses by teacher, and partner available to repeat concepts when there is background noise, and related services in audiology.

The district acknowledges that the student was not receiving services from a certified Deaf and Hard of Hearing teacher at the start of the 2019-20 school year. In addition, the special education services were delivered in a setting that was not in accordance with the student’s IEP. The room was located in a highly trafficked area, which, as a result, generated background noise, making it difficult for the student to access the special education services. On November 18, 2019, the special education room used to provide DHH services was moved to a quieter section of the building. On November 29, the IEP team met and determined the student would receive “25 minutes, 5 times a week of compensatory services by a DHH teacher in the areas of math, reading, writing, and functional skills in a quiet, one-on-one learning environment with minimal background noise from December 2 through December 13”. The district did not properly implement the individualized education program (IEP) of a student with a disability.

Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure all IEPs are properly implemented at the start of the school year. In addition, the corrective action must also include a plan that addresses hiring appropriate and certified staff qualified to meet deaf and hard of hearing needs.

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:sao

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