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IDEA Complaint Decision 20-031

On March 4, 2020, (letter dated March 2, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2019-20 school year:

  • Properly responded to the request of an adult student and parent for pupil records; and
  • Properly implemented the individualized education program (IEP) of a student with a disability regarding an annual goal regarding writing.

Whether the district properly responded to the request of an adult student and parent for pupil records.

School districts must permit parents to inspect and review any education records that are collected, maintained, or used by the district. A district must comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing related to discipline procedures, including a manifestation determination. In no case may the district response be more than 45 days after the request has been made. (34 CFR § 300.613). If any education record includes information on more than one student, the parents of those students have the right to inspect and review only the information relating to their student or to be informed of that specific information. (34 CFR § 300.615).

On December 16, 2019, the student who is the subject of this complaint was involved in a behavioral incident with another student and was subsequently expelled. Cameras in the school captured a video of the incident. Under the facts of this case, the video of the altercation involving the student on school premises is considered a pupil record because it was maintained by the district, was directly related to the student, and was used as part of an expulsion hearing. District staff acknowledged the parent verbally requested a copy of the video on December 16, 2019, and the parent did not receive a copy of the video or an opportunity to inspect or review the record prior to the expulsion hearing on January 13, 2020.

Following the expulsion hearing, the parent made requests for a copy of the video of the incident in preparation for an IEP team meeting that was being held on March 9, 2020. The district did not provide a copy of the video or an opportunity for the parent to inspect or review the record prior to the March IEP team meeting. To date, the district has not provided the parent with a copy of the video. The district did not properly respond to the parent’s requests for a pupil record when they did not provide the parent opportunity to inspect or review the record prior to the hearing or IEP team meeting. As student specific corrective action, the district must provide the parent the opportunity to inspect and review the video within 20 days from the date of this decision. The district must also develop a corrective action plan that includes written procedures to ensure district staff properly respond to a request of an adult student or parent for pupil records without unnecessary delay and before an IEP team meeting or hearing.

Whether the district properly implemented the IEP of a student with a disability regarding an annual goal related to writing.

Periodically, but not less than annually, the IEP team must review the student’s IEP to determine whether the annual goals for the student are being achieved and revise the IEP, as appropriate, to address any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate. (34 CFR § 300.324[b]). The IEP must include a description of how the student’s progress toward meeting the annual goals will be measured and when periodic reports on the progress the student is making toward meeting the annual goals will be provided. (34 CFR § 300.320[a][3]).

The student’s IEP in effect on March 4, 2019, included a goal for the student to increase “written and language skills by editing (the student’s) written work for spelling, punctuation, and grammar errors 4 out of 5 times.” The student’s baseline level of performance was “80% proficiency.” The student’s expected level of attainment was “85% proficiency.” A progress report dated June 7, 2019, indicates the student’s progress was “emerging,” and progress was sufficient to reach the annual goal. At the annual IEP team meeting to develop the IEP for the 2019-20 school year, the IEP team reviewed the student’s progress toward the writing goal and determined the student had not met the goal and would continue to work on the goal with the same baseline of 80% proficiency and level of attainment of 85% proficiency. The student would also continue to receive 20 minutes of specially designed instruction in reading and written language five days a week during the 2019-20 school year.

On August 29, 2019, the IEP team met to review the student’s goals and schedule of courses. The student was scheduled to take a 90-minute course in English daily during the second semester. The IEP documents, “after careful consideration, the team believes that the… schedule will allow [the student] to achieve success.” No revisions were made to the writing goal or specially designed instruction. On November 1, 2019, the IEP team met and documented in the student’s IEP that the writing goal was not introduced because the student did not have an English class first semester, and the goal would be evaluated during the second semester when the student was enrolled in English. The IEP was revised to indicate specially designed instruction in the written language would occur when the student was taking English. A progress report provided on January 17, 2020, documents the student’s status toward the writing goal was “emerging,” the student was making sufficient progress to reach the annual goal, and the student was currently at 70% proficiency in 4 out of 5 written skill trials. Although the student had decreased in proficiency, the IEP was not revised to address the student’s lack of progress. During the complaint investigation, district staff explained it was not surprising to see a regression in the student’s writing skills because the student was not enrolled in English during the first semester. The IEP team believed the student would reach the goal by the end of the year because the student was scheduled daily for a 90-minute block of English and 20 minutes of specially designed instruction in written language for the remainder of the school year.

Before developing annual goals, the IEP team must review the previous year’s IEP goals and progress. When the IEP team concluded the student did not meet the annual goal in June 2019, they should have determined why the student did not make sufficient progress and revise the goals and services to address any lack of expected progress toward the annual goals and in the general education curriculum. In addition, the student did not receive specially designed instruction in writing as required by the IEP in effect at the start of the 2019-20 school year, and the student’s writing skills regressed. Within 30 days of this complaint decision, the IEP team must reconvene to determine compensatory services needed to address the student’s lack of progress and the lack of specially designed writing instruction from the start of the 2019-20 school year until November 1, 2019. The district must also develop a corrective action plan to ensure when a student does not meet their annual IEP goal, the IEP team determines why the student did not make sufficient progress and revises the IEP to address any lack of expected progress toward the annual goals and in the general education curriculum. By July 1, 2020, submit a copy of the IEP documenting the compensatory services and a copy of the district corrective action plan to the department.

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 5/1/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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