On October 18, 2019, (form dated October 17, 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, since October 18, 2018:
- Properly implemented the individualized education program (IEP) of a student with a disability;
- Properly determined placement for the student in the least restrictive environment (LRE) appropriate to meet the student’s individualized needs;
- Properly changed the student’s educational placement; and
- Properly responded to the student’s parent’s request for an IEP team meeting.
Whether the district properly implemented the individualized education program (IEP) of a student with a disability.
At the beginning of each school year, each public agency must have an IEP in effect for each child with a disability within its jurisdiction. (34 CFR §300.323[a]).
The student, who is the subject of this complaint, attends XXXXX (school), a virtual school chartered by the district. The student’s IEP in effect on October 18, 2018, included 30 minutes of specially designed instruction in social skills, math, and reading instruction four times per month, and 30 minutes of occupational therapy (OT) once per week provided in a virtual school environment. The school uses an online data management system to track services provided. The database includes the name of the session, time of the session, the name of the teacher, type of session (e.g., small group special education services), and student attendance. During the complaint investigation, school staff verified the database is used to document their services. According to the database, the student tended to receive more than four sessions of specially designed reading instruction each month and fewer than four sessions of specially designed math and social skills instruction each month during the 2018-19 school year. Due to a staff change in occupational therapy, sessions were not provided in accordance with the IEP. The district subsequently provided additional sessions to compensate for the missed sessions. At the April 12, 2019, IEP team meeting, the student’s IEP was revised to include 30 minutes of math and 30 minutes of reading instruction each week, ten minutes of OT once per month and 30 minutes of speech and language instruction two times per week. According to the district’s database, the student received more than one session of specially designed reading instruction each week and fewer than one session of specially designed math instruction each week. Ten minutes of OT consult was provided. Speech and language instruction was offered each week with the exception of two weeks in late October/early November. The pathologist was planning to reschedule these sessions, but the student was removed from the school due to insufficient participation/completion of coursework before this could occur.
In addition, the parent alleges the district failed to provide access to the general education curriculum when online instruction was not available to the student until October. In an email to the district dated October 18, 2018, the parent expressed concern that the parent and student were not aware of the availability of the “live class connect sessions” (online instruction provided in real-time by regular education teachers) and that the student had not been invited to participate in sessions. That same day, a regular education teacher from the virtual school responded to the parent via email saying there was a “system error or software glitch,” preventing the student from accessing the courses and reassured the parent there were “multiple people working on [this] challenge.” During the complaint investigation, the district explained that some of the online general education courses were not available due to electronic technical difficulties, problems loading coursework and a breakdown in communication.
The district did not properly implement the student’s IEP when the district failed to provide specially designed instruction at the frequency specified in the student’s IEP. In addition, the district did not provide an opportunity for the student to access and make progress in the general education curriculum due to technical difficulties in virtual programming. Within thirty days of this decision, the district must develop a corrective action plan to ensure IEP services are provided in the school environment at the frequency specified in an IEP, and that students have an opportunity to access and make progress in the general education curriculum at all times.
Within thirty days of this decision, the district school board must reconsider the removal of the student from the school in light of the student’s reduction of specially designed instruction since October 18, 2018, and the lack of access to the general curriculum after October 18, 2018. If the student returns to the school, the district must provide compensatory services for the time period after October 18, 2018, for failing to implement the student’s IEP and to allow access to the general education curriculum.
Whether the district properly determined placement for the student in the least restrictive environment (LRE) appropriate to meet the student’s individualized needs.
Through open enrollment, the parent chose the school in the district for the student to attend. On April 12, 2019, the IEP team met to develop an annual IEP and determine the student’s continuing placement. Documentation indicates the student participates full-time with nondisabled peers in the regular education environment. Participation in online curriculum completion and live-class connect sessions are considered regular education environment. Regular education teachers provide instruction in the general education curriculum during the live-class connect sessions. Students who are nondisabled participate in these sessions at the same time as the student who is the subject of this complaint. During the IEP team meeting, the IEP team determined the student’s needs could be met at the school, and the IEP indicates this is the school the student would attend if nondisabled.
The district properly determined placement for the student. However, the district improperly identified the student as participating full-time with nondisabled peers in the regular education environment. The student’s specially designed instruction is provided during small group sessions of students with disabilities by special education licensed staff. During this time, the student is virtually removed from the regular education environment. The district must include in their corrective action plan steps to ensure the IEPs of students who attend the school accurately reflect any removal from the regular education environment.
Whether the district properly changed the student’s educational placement.
The IEP team must determine the special education placement for a child with a disability during an IEP team meeting. (WI Stats. § 115.78[c]).
At the April 12, 2019, IEP team meeting, the student’s IEP was revised to include 30 minutes of math and 30 minutes of reading instruction each week, ten minutes of OT once per month and 30 minutes of speech and language instruction two times per week provided in the virtual school environment. On May 22, the parent and the student’s special education teacher spoke and agreed to change the amount of speech and language services to 30 minutes once a week. The change was implemented on May 28, 2019.
Special education placement includes increasing or decreasing the amount of time in special education environments. In Wisconsin, an IEP team meeting is required when making a change of placement. The district erred in changing the special education placement of the student when the parent and teacher agreed outside of an IEP team meeting to reduce the student’s amount of speech and language services. Within 30 days of this decision, the district must develop a corrective action plan to ensure changes in special education placement are made by a student’s IEP team during an IEP team meeting. The corrective action plan must focus on training for school special education staff.
Whether the district properly responded to the parent’s request for an IEP team meeting.
The parent of a child with a disability has the right to request an IEP team meeting at any time, and the district must grant any reasonable parent request. The district must respond to the parent’s request within a reasonable amount of time, and schedule the meeting at a mutually agreed on time and place. (34 CFR § 300.322).
On October 17, 2019, the parent requested an IEP team meeting to discuss the student’s lack of progress and possible removal from the school. On October 18 and 21, the district sent an email to the parent to check the parent’s availability to attend an online IEP team meeting to review and revise the student’s IEP. The parent did not respond. On October 22, the district proposed a facilitated IEP team meeting, and on October 23, 2019, provided written notice of an IEP team meeting tentatively scheduled for November 1, pending parent availability. The parent responded that the parent was considering mediation and would contact the district after speaking with an advocate. The IEP team meeting did not occur. The student was subsequently removed from the school by the district school board for failure to participate or complete a required amount of online curriculum. The district properly responded to the parent’s request for an IEP team meeting when they attempted to schedule an IEP team meeting on November 1, 2019.
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.
//signed by BVH 12/17/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support