On February 14, 2020, 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 February 14, 2019, properly implemented the individualized education program (IEP) of a student with a disability and properly enabled a student with a disability to participate in nonacademic and extracurricular activities.
Whether the district properly implemented the 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 their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include clear 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. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. (34 CFR § 300.323; Wis. Stat. § 115.787).
The IEP of the student who is the subject of this complaint contains related services the student needs to benefit from special education, including school nursing services. The student requires daily nebulizer breathing treatments per the student’s health plan attached to the IEP. The school nurse, the student’s parents, and the student’s doctor determine specific details about the treatments, including the time of day the student receives the treatment. The student also requires blood oxygen saturation levels and heart rate measurements before and after physical education class. The student’s health plan states the student should be encouraged to participate in physical activities. If the student is tired or if a staff member believes that the student is showing signs of distress, the student is to sit down and take a rest.
The student has a routine that assures the student receives daily nebulizer treatments at school. The routine involves the student walking a short distance from the lunchroom to the office after lunch. The student then receives the treatment in the office. However, on June 3, 2019, and November 20, 2019, the student did not receive the daily nebulizer treatment. On both days, classroom events disrupted the student’s routine. The student did not have lunch in the lunchroom and subsequently did not walk to the office for the daily nebulizer treatment. The district did not implement the student’s IEP when the student did not receive the nebulizer treatment on June 3, 2019, and November 20, 2019.
Whether the district properly enabled a student with a disability to participate in nonacademic and extracurricular activities.
School districts must provide supplementary aids and services, as determined by the student’s IEP team, to afford the student an equal opportunity to participate in nonacademic and extracurricular services and activities. These services and activities may include recreational activities, transportation, and health services, among others. (34 CFR § 300.107).
During the week of March 4, 2019, the student’s school had a winter celebration, which included various physical activities or “homeroom challenges.” Given the physical nature of the activities, the staff determined the student would not be allowed to participate. When the student’s classmates participated in the homeroom challenges, the student spent time in the special education room working on an iPad. At this point in the school year, the student’s health plan had not been developed, and the student’s IEP did not include services to afford the student an opportunity to participate in nonacademic and extracurricular activities. Since that time, procedures and supports for ensuring equal opportunity to participate were included in the student’s IEP. Interviews and attendance records indicate that the student did attend the class field trip to the zoo on April 19, 2019, and received the required supplementary aids and services, including the use of a wheelchair and a nebulizer treatment on site. During the week of March 4, 2019, the district failed to enable the student to participate in nonacademic and extracurricular activities.
The IEP team must meet to review the IEP to determine whether revisions are necessary to ensure that the student receives daily nebulizer treatments on days when school activities interfere with the student’s routine. The district must provide the department with a copy of the IEP within ten days of the IEP team meeting. Due to school closures during the COVID-19 public health emergency, the department recognizes this meeting may be delayed. In addition, within 45 days of this decision, the district is required to submit a corrective action plan to the department to ensure IEP teams consider and determine the supplementary aids and services to afford students with disabilities equal opportunity to participate in nonacademic and extracurricular services and activities.
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,
//digitally signed by BVH 4/13/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support