On February 26, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). On April 22, 2020, the department notified the parties that it would not be possible with reasonable efforts to obtain all relevant information necessary to make an independent determination as to whether the district is violating the requirements of the state or federal special education law due to the school closures related to COVID-19, and therefore extended the 60-day complaint resolution timeline. This is the department’s decision regarding the complaint. The issues are whether the district, during the 2019-20 school year:
- Properly developed the individualized education program (IEP) of a student with a disability based on the student’s unique needs and reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances;
- Properly implemented the student’s IEP;
- Properly provided the student’s parent a copy of the IEP prior to its implementation; and
- Properly provided the parent with periodic reports on the progress the student is making toward meeting the annual goals described in the student’s IEP.
Whether the district properly developed the individualized education program (IEP) of a student with a disability based on the student’s unique needs and reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances.
School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related 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 as articulated in the IEP. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. (34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78; Endrew F. v. Douglas County School District, 137 S.Ct. 988). Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided, as described in the IEP. (34 CFR §§ 300.320 and 300.323). When behavior interferes with a student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. (34 CFR § 300.324[i]).
The student’s IEP team met on October 8, 2019, to conduct the annual review of the student’s IEP. The IEP team reviewed the student’s present levels of academic achievement and functional performance, noting academic difficulties in math and reading and difficulty with self-regulation. The team agreed that the student’s behavior impedes the student’s learning and specified positive behavior supports and interventions to address the behavior in question. The team identified the student’s disability-related needs and developed annual goals to address those needs. The IEP included specially designed instruction and supplementary aids and services to allow the student to make progress towards the annual goals.
The IEP team met again on January 16, 2020, to consider the parent’s concerns related to communication with the case manager, the student’s gap in reading achievement, and the student’s tardiness to school. The IEP team increased the student’s specially designed instruction in reading from 30 minutes two times per week to 30 minutes daily. The team also added additional supplementary aids and services, including a breakfast pass to address the tardiness issue, and some additional organizational aids and testing accommodations. The district also initiated a reevaluation in order to examine the student’s speech and language difficulties and conduct a functional behavior assessment. The reevaluation has not yet been completed due to state-mandated school closures.
However, both of the IEPs developed during 2019-20 include a goal that is not properly developed. Specifically, the student’s second goal seeks to address the student’s organizational needs but merely states the student will be able to effectively choose a way to organize materials, and contains no measurable baseline or level of attainment. In addition, the frequency and amount of many of the supplementary aids and services are described using terms such as “when required,” “as needed,” and “when applicable.” These descriptions do not provide sufficient clarity as to when these services should be provided.
Within 30 days of the date of this decision, the district shall schedule an IEP team meeting to revise the student’s second goal so that it is measurable with an appropriate baseline and level of attainment, and revise the IEP to appropriately describe the frequency and amount of supplementary aids and services. The district must submit a copy of the revised IEP to the department within ten days of the IEP team meeting.
Whether the district properly implemented the student’s IEP.
Supplementary aids and services specified in an IEP must be provided to the student as described. The parent asserts the student was, on occasion, not provided the following supplementary aids and services specified in the student’s IEP: review/re-teaching, rephrase/restate/check for understanding, check-in/check-out, and test accommodations. The district believes the services were provided as specified but is unable to provide any evidence to support the delivery of services as the staff member responsible for the implementation of the services has left the district, and documentation of the provision of services was not available. Assuming the services were not provided, or that the lack of clarity regarding frequency made implementation difficult, it does not appear that the missed services had a substantial impact on the student’s progress.
Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to monitor the future implementation of supplementary aids and services in the student’s IEP.
Whether the district properly provided the student’s parent a copy of the IEP prior to its implementation.
A student’s parents must be provided with a copy of the student’s IEP prior to the implementation of the IEP. (34 CFR § 300.503[a]). The district concedes that it did not properly provide a copy of the student’s IEP to the parent prior to its implementation during the 2019-20 school year. Though late, the IEP was eventually provided to the parent. The district has already taken steps to ensure this noncompliance will not recur. No additional corrective action will be required as a result of this noncompliance.
Whether the district properly provided the parent with periodic reports on the progress the student is making toward meeting the annual goals described in the student’s IEP.
A student’s IEP must specify when periodic reports on the progress the student is making towards meeting annual goals will be provided. (34 CFR § 300.320[a]). Such progress must be provided on the schedule specified, must include a statement of progress on each annual goal, and must include data matching the measurement specified in the annual goal.
During the 2019-20 school year, the district provided progress reports concurrent with the trimester grade reporting periods as specified in the student’s IEP. However, those progress reports did not provide data matching the measurement specified in the annual goals. The parent asserts that the IEP specified the district was to provide reports of progress more frequently than three times per year. The student’s parent cites the section of the student’s IEP entitled “Program Modifications or Supports for School Personnel.” In that section, the IEP specifies, “Consult with [the student’s] teachers, 10 minutes weekly.” Contrary to the parent’s understanding, this section does not specify consultation with the parent 10 minutes weekly; rather, it is related to consultation between the student’s special education teacher and the student’s regular education teacher.
Within 30 days of the date of this decision, the district shall submit to the department the steps it will take to ensure all progress reports include data matching the measurement specified in the annual goal.
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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.
//digitally signed by BVH 7/21/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support