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IDEA Complaint Decision 20-044

On June 9, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). The issue identified is whether the district, during the 2019-20 school year, properly developed the individualized education plan (IEP) of a student with a disability.

School districts must develop an IEP for each student with a disability for whom they are responsible. The IEP must include a statement of the student’s present levels of academic achievement and functional performance. (34 CFR § 300.320). 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, 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 clear descriptions of the amount, frequency, location, and duration of services so the district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. (34 CFR §§ 300.320 and 300.323). Any time a district proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) for a student with a disability, the district must provide prior written notice containing a description of the action refused, an explanation of why the district refuses to take the action, other options considered and why those options were rejected. (34 CFR § 300.503[a][2]).

The student who is the subject of this complaint had an IEP in effect at the beginning of the 2019-20 school year. It described the student’s need for one-to-one adult educational assistance with all educational tasks, including redirection on a minute-to-minute basis in all classes and all settings due to the student’s difficulty maintaining focus. The IEP also explained the student’s need for physical assistance while walking due to limited peripheral vision and right side body weakness. The IEP identified disability-related needs in the areas of fine motor and visual motor skills, reading, math, working memory, and specially designed physical education. The IEP included measurable annual goals addressing each of these disability-related needs. Notably, the IEP did not include goals to increase the student’s level of independence regarding issues of focus or physical safety, nor did it include a plan to reduce the student’s dependence on the one-to-one educational assistant.

The student’s IEP team met on February 21, 2020, to complete the student’s three-year reevaluation and develop the student’s annual IEP, including planning for the student’s transition to high school for the 2020-21 school year. The meeting was several hours long due to the complexity of the student’s reevaluation. The IEP included a description of the student’s ongoing difficulties with focus and need for frequent redirection, and explained the student could independently maintain focus on tasks for about one minute. The IEP indicated the student requires assistance with some physical tasks including opening containers and carrying a tray at lunch, fastening belts and zippers, and occasional assistance with personal care tasks. The student requires adult assistance when transitioning to and from vehicles, and while walking in hallways. The student requires an adult in close proximity while walking on stairs due to balance concerns. The team’s discussion of the services to be provided to the student occurred toward the end of the meeting, after the team had been meeting for several hours. Based on interviews with IEP team members, the department determines a decision was made to continue providing a one-to-one educational assistant support at the high school.

In May 2020, the student’s current educational assistant contacted the student’s parents to alert them that he had been displaced from his position and would not continue with the student. The student’s parent was surprised by this news, and remembering the discussion at the meeting, reviewed the language in the February IEP regarding the student’s educational support. The IEP indicated the student would have differing levels of support in different circumstances, including one-to-one educational assistance navigating stairs, academic educational support when the student is “look(ing) off/staring or saying I don’t know,” and functional educational support, defined as an adult in eye sight, in hallways, and during arrival/dismissal, lunch, and regular education classes. The student’s parent contacted district staff to request a meeting of the IEP team to discuss the discrepancy between the services described and the IEP team’s determination.

The IEP team reconvened on June 3, 2020. At the meeting, the student’s parents shared their frustrations related to the IEP and the reasons why they believed the student required one-to-one assistance. During interviews with the department’s investigator, IEP team participants explained the meeting was contentious, and they did not have an opportunity to participate in a full discussion or provide their professional opinion of the student’s needs.

The team added language provided by the student’s parents to the “concerns of the parent/family” section of the IEP, describing the parents’ surprise and disappointment that the support described in the IEP did not include a one-to-one assistant, and that the student’s current educational assistant would not be following the student to high school. The placement page describes the parent’s request for the one-to-one educational assistant to continue, but indicates the team rejected that option. While the statement explains that team members were not in agreement regarding the request, no specific reasons were provided as to why the option was rejected.

The district did not properly develop the student’s IEP regarding the student’s level of educational assistant support. The IEP developed on February 21, 2020, did not properly reflect the team’s decision regarding one-to-one assistant support in high school. When the IEP team reconvened per the parent’s request on June 3, 2020, there was no documentation that the needs of the student had changed and no reasons for why a one-one-assistant was no longer required.

Within 20 days of the date of this decision, the district is directed to reconvene the student’s IEP team and conduct a full review of the student’s need for adult assistance, including input from all IEP team participants. The IEP must clearly describe the reasons for the team’s determination within the IEP, and include appropriate prior written notice of all options considered and rejected. The district is directed to submit a copy of the revised IEP to the department within 10 days of the meeting. In addition, the district is directed to develop and submit to the department a corrective action plan to ensure IEP teams appropriately determine the levels of adult educational support/assistance required by students, and that prior written notice of options considered and rejected is provided to parents.

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.

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