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IDEA Complaint Decision 19-081

On October 23, 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 that complaint. The issues are whether the district, since October 23, 2018, improperly provided special education services to a student without initial parent consent, properly implemented the individualized education program (IEP) of a student with a disability regarding behavioral supports, and properly provided the student services in the least restrictive environment.

At the beginning of each school year, each public school district must have an IEP in effect for each child with a disability, and services must be provided to the student in accordance with the student’s IEP. (34 CFR §300.323). In addition, to the maximum extent appropriate, students with disabilities should be educated with students who are not disabled. Separate classes, separate schooling, or other removals should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 CFR §300.114). However, before a school district may provide special education services, the student must be evaluated and found eligible by the IEP team, and the parent must consent to the initial provision of special education services. (34 CFR §300.300[b][2]).

On January 26, 2018, the student’s IEP team met and determined the student was eligible for special education under the impairment area of emotional behavioral disability. On February 15, 2018, the IEP team met to develop an initial IEP and determine placement. The IEP team met again in April 2018, per the parent’s request, to review the IEP. The parent provided consent for initial provision of services on May 23, 2018. During the 2018-19 school year the student attended a private school, where he was enrolled by his parent. Requirements under special education law regarding the implementation of IEPs and education in the least restrictive environment do not apply to students enrolled in a private school by their parents. Consequently, because the student was not enrolled in the district, the district was not required to implement an IEP for the student or provide services in the least restrictive environment during the 2018-19 school year.

On October 24th, a day after this complaint was filed, the parent enrolled the student in a public school within the district. The district is implementing the student’s IEP in the regular education environment, and the district was not required to seek consent again for the provision of special education services. Rather, consent is only required for the initial provision of special education services, which in this case was given in May 2018. The district did not improperly provide special education services to a student without parental consent, and properly implemented the student’s IEP in the least restrictive environment when the student was enrolled in the school district.

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

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