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IDEA Complaint Decision 19-091

On November 25, 2019 (form dated November 22, 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 issue(s) are whether the district, since November 25, 2018:

  • Properly responded to the request of the parent of a student with a disability to consider the student’s need for extended school year (ESY) services;
  • Properly developed the individualized education program (IEP) of a student with a disability regarding appropriate peer interactions;
  • Properly implemented the student’s IEP regarding parent communication; and
  • Properly scheduled a meeting of the student’s IEP team at a time and place mutually agreeable to the student’s parents.

Whether the district properly responded to the request of the parent of a student with a disability to consider the student’s need for extended school year (ESY) services.

A school district is required to provide ESY services to a student when the student requires these services to receive a free appropriate public education (FAPE). If the parent or any other member of the IEP team expresses a desire to discuss the student’s need for ESY, the IEP team, including the parent, must determine, on an individual basis, whether the student requires ESY services in order to receive FAPE (34 CFR § 300.106). A written notice must be given to the parents of a child with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child (34 CFR § 300.503).

At an IEP team meeting held for the student on February 21, 2019, the student’s parent expressed interest in ESY services. The IEP team briefly discussed ESY but determined that it would be best to wait until closer to the summer to discuss in more detail.

On May 28, 2019, the student’s parent emailed district staff requesting a discussion about summer services. She indicated that her child would benefit from speech and occupational therapy services over the summer. District staff responded to this email later that day detailing ESY eligibility criteria, the student’s current progress, and availability of district summer programming. On June 21, 2019, the student’s parent responded to the email again asking to discuss ESY services as it had not occurred to that point. On July 8, 2019, district staff respond to this email with information about the student’s possible eligibility for ESY services. Given the discussion at the February 21, 2019, IEP team meeting and the parent’s email requests, the district should have scheduled an IEP team meeting to consider ESY services. The district did not properly respond to the parent’s request to consider ESY services.

Whether the district properly developed the student’s IEP regarding appropriate peer interactions.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include a statement of the student’s present levels of academic achievement and functional performance. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. The IEP must include descriptions of the amount, frequency, location, and duration of services so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. (34 CFR §§ 300.320, 300.323-.324; Wis. Stat. § 115.787).

The student’s parent expressed concern at both the February 21, 2019, and August 29, 2019, IEP team meetings that the student was having difficulty interacting with peers as a result of the student’s speech and communication developmental delay. The parent explained that at daycare it was not uncommon for the student to push and pull other children to get their attention instead of speaking to them. The parent requested the IEP team add a goal related to peer interaction. Interviews confirm that the IEP team discussed the parent’s concern at the August 29, 2019, IEP team meeting, and decided not to add a goal at that time because the student was not exhibiting this behavior at school. The team agreed to gather additional data and revisit the issue at a later date. The decision is documented as an option the IEP team considered and rejected at the August 29, 2019, IEP team meeting. The district appropriately considered the parent’s concerns in developing the student’s IEP regarding appropriate peer interactions.

Whether the district properly implemented the student’s IEP regarding parent communication.

The IEP developed for the student at the August 29, 2019, meeting requires district staff to send general information to the student’s parents every Friday, and monthly notes covering peer interactions, toilet training, and progress monitoring information regarding skills for possible ESY consideration. Interviews confirm that although district staff sent the parent general information and daily updates, staff are not consistently providing the monthly notes with the required information. The district has not properly implemented the student’s IEP regarding parent communication.

Whether the district properly scheduled meetings of the student’s IEP team at a time and place mutually agreeable to the student’s parents.

School districts must take steps to ensure that one or both parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and scheduling the meeting at a mutually agreed on time and place (34 CFR § 300.322).

The district has a practice of scheduling IEP team meetings on Thursdays to ensure staff are available to facilitate meetings. However, the district schedules meetings on other days any time a student’s parent is not able to attend IEP team meetings on Thursdays and requests a different day. During the time period covered by this complaint, one of the student’s parents was available and attended all Thursday IEP meetings; however, the other parent was never available on Thursdays. The student’s parents did not disclose their scheduling difficulty with district staff and did not request alternate dates for IEP meetings. In this case, the district properly scheduled meetings of the student’s IEP team.

Within 20 days of this decision, the IEP team must reconvene to determine whether the student should have received ESY services during the summer of 2019. If the IEP team determines that the student should have received ESY services, the team must determine the compensatory services to be provided to the student. The district must provide the department with a copy of the revised IEP documenting the decision. At this meeting, the district must also clarify the IEP regarding parent communication and determine the frequency, amount, and topics to be covered in future updates sent to the student’s parents.

In addition, 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 and district staff properly respond to parent’s requests for ESY services.

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 the department’s website at http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

//signed by BVH 1/23/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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