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IDEA Complaint Decision 19-089

On November 7, 2019, the Department of Public Instruction (department or DPI) 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 issue is whether the district, during the 2019-20 school year, properly implemented the individualized education program (IEP) of a student with a disability.

Under state and federal special education law, public schools are responsible for providing each student with a disability a free, appropriate public education (FAPE) in the least restrictive environment that meets the individual needs of students with disabilities. There is not a lesser or greater version of FAPE. Rather, districts provide FAPE to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program articulated in the IEP.

The department and the Wisconsin Department of Health Services (DHS) have provided joint guidance for behavioral treatment of school-age youth. DHS and DPI policies permit collaboration between behavioral treatment providers and school personnel in accordance with local school district policies. School districts have the authority to create local policies governing school access afforded to behavioral treatment providers; however, it is the responsibility of school staff to address educational needs identified in a student’s IEP, and this responsibility may not be supplanted by behavioral treatment from an outside provider. (Department of Public Instruction Memorandum, September 2018).

The district issued guidance entitled Guidelines for Third Party Participation developed in 2004. This guidance was referenced on February 13, 2013, in documents to school principals entitled Elementary Principals Weekly Updates and [District] Secondary Education. The documents to school principals state, “If you currently have third party private providers that are providing direct services to students in your buildings, please inform them that they can no longer continue that practice.” The district’s guidance allowed for direct service by third-party providers during the school day under “exceptional circumstances and approved by an Educational Services Assistant Director.”

On September 23, 2019, an IEP team meeting was held for the purpose of developing an annual IEP for the student who is the subject of this complaint. As part of the description of the student’s present level of functional performance, the IEP team indicated that for the past year, the student attended an outside therapy center to receive one-to-one applied behavioral analysis (ABA) therapy and support. The present level also indicates that during the school year, the student would continue to attend the center for half days to participate in the center’s kindergarten transition program, and a therapist from the center “will also come to school twice a week for an hour to support [the student] within the school setting.” When the school principal, who was not a member of the student’s IEP team, became aware the student’s outside therapist was providing direct support to the student in the school building, the principal alerted staff and the district scheduled an IEP team meeting to discuss the student’s needs.

During the department’s investigation, it became clear that members of the student’s IEP team did not have a shared understanding of what the ABA therapist’s “support” meant in the IEP. The student’s parent believed “support” meant the therapist would provide direct services to the student. A district staff member believed “support” meant observation of the student and consultation with school staff regarding suggested strategies. The IEP team was not required to document information about the student’s participation in ABA therapy since this was not a special education service provided by the district. However, it was reasonable for the parent to believe the district was allowing the therapist to provide direct services given the statement in the IEP the ABA therapist would “come to school twice a week for an hour to support [the student] within the school setting.”

On November 18, 2019, the IEP team met to discuss the third-party therapist’s participation with the student at school. The IEP team reviewed the nature of the services the third-party therapist was providing the student at school. The therapist provided one-to-one ABA therapy and support to the student in the school setting for thirty minutes twice a week, assisting the student to work through social dilemmas, choose a variety of play activities, and facilitate communication with peers during unstructured “choice” time. During the meeting, a district-level administrator stated the third-party provider language needed to be removed from the student’s IEP and asked if any services needed to be added to the student’s IEP to make sure the district continued to meet the student’s needs as a result of the removal. District staff believed the student’s existing teachers, therapists, and classroom aide were meeting the student’s disability-related needs. District staff further explained that although not documented as a service in the IEP, they were already providing the needed supports and verbal cues to facilitate communication and assist the student to select a variety of play activities on a consistent basis. The IEP team also discussed the need for one-to-one paraprofessional support services and determined it would not be in the best interest of the student as it might inhibit interaction with peers and lead to dependence on the paraprofessional. In addition, district staff believed one-to-one paraprofessional support was inconsistent with one of the student’s IEP goals that called for “fading adult support.” District staff believed the current staffing configuration best met the student’s needs. The team revised the student’s IEP to include daily check-ins to encourage social interactions and expand play throughout different areas in the environment, and verbal cues to increase language and social phrases. During the meeting, the parent expressed a desire to “do everything possible for [the student]…over and above FAPE, over and above what the school is providing” to “maximize potential” and give the student the “best chance of success.” To that end, the parent suggested they sign a statement agreeing the district was providing minimal FAPE in order to allow the outside therapist to further support the student in school and enhance the district’s provision of FAPE. A district administrator said that they would consider the parent’s request for third-party participation apart from the IEP. The IEP team documented in the IEP the parent’s concern with the district not allowing a third-party provider to come into the school and provide direct programming to the student and the parent’s desire to enhance the student’s education with this additional service.

The department can appreciate the parent’s frustration caused by the documentation of a service in the student’s IEP that was not the responsibility of the district as part of providing FAPE. The district has agreed to discuss the possibility of a partnership with the third-party provider apart from FAPE and outside of the IEP team meeting. This is consistent with the district's policy on School and Community Partnerships that states, “The BOARD supports and invites opportunities to create and cultivate school-community partnerships.” Community entity is defined as “a third-party, not under the auspices of the DISTRICT, including, but not limited to, families, individuals, non-profit organizations, businesses, social service providers, and healthcare organizations.” The policy includes procedures for establishing a partnership, subject to review and consideration by district staff.

District staff determined they were meeting the student’s disability-related needs, and that the services provided by the outside therapist were not necessary for the student to receive FAPE. The parent’s comments during the IEP team meeting indicate the supports provided by the outside therapist were intended to provide a level of service beyond what the student required to receive FAPE. The IEP team determined the support from an outside ABA therapist in the school setting was not required in order for the student to receive a free appropriate public education and make progress towards attaining the student’s IEP goals. The department finds that the district properly implemented the IEP of the student.

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 1/6/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:abc

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