On October 13, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainants) against XXXXX (district). This is the department’s decision regarding the complaint. The issues identified are whether the district, during the 2020-21 school year:
- Properly developed the individualized education program (IEP) for a student with a disability;
- Properly responded to requests from the student’s parent for a change in the student’s placement; and
- Properly responded to a parent request for a copy of the student’s IEP.
Whether the district properly responded to requests from the student’s parents for a change in the student’s placement and properly developed the individualized education program (IEP) for a student with a disability.
Each school district must ensure that the IEP team reviews the student’s IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved. (300 CFR § 300.324[b][i]). If a school district offers parents instructional options due to the public health emergency, regardless of which option a parent chooses, the IEP of a student with a disability must be designed to provide the student a free, appropriate public education (FAPE). The IEP must include a statement of the special education services to be provided to the student that specifies the frequency, amount, location, and duration of those services. (Wis. Stat. § 115.787). The services in the IEP must be stated, so the level of the LEA’s commitment of resources is clear to all involved in developing and implementing the IEP. The student’s IEP must be implemented as written.
On March 24, 2020, all public and private K-12 schools in Wisconsin were ordered to close for in-person pupil instruction due to the COVID-19 pandemic. At that time, the district provided distance learning for all students. General education teachers provided asynchronous learning opportunities, which typically meant the general education teachers posted instruction and core assignments at the start of the week, and students submitted their work by the end of the week. The student who is the subject of this complaint completed the assignments with support from a special education teacher during a daily virtual study hall.
On August 24, 2020, an IEP team meeting was held in order to develop the student’s annual IEP. The IEP team discussed various learning options, including in-person learning, distance learning, and a blend of in-person and distance learning. The student and parents expressed a desire for the student to continue participating in asynchronous distance learning with the addition of an in-person shop class at the high school. The IEP team meeting ended with the understanding that the student would participate in a blended learning option. However, the IEP team did not determine the amount of special education services the student would receive.
In a follow-up email to the parents the next day, the student’s special education teacher referenced scheduling five hours weekly of virtual study hall with the special education teacher. The parent responded to the teacher’s email expressing concern regarding the limited amount of special education support the student would receive. The district scheduled another IEP team meeting to continue discussing the student’s services.
The IEP team reconvened on August 27, 2020. District staff explained that in-person learning would resume for all students at the start of the 2020-21 school year, and general education teachers would no longer provide asynchronous distance learning in the manner they had during the closure. Classes would be taught in-person on a block schedule, and due to the block schedule, students would take fewer classes at a time during shorter, nine-week terms. The IEP team provided the parents with three learning options for the student: in-person instruction at school, distance learning via an online curriculum (Edgenuity), and a combination of the two.
The parents and student again requested the district provide asynchronous distance learning like that provided during the pandemic school closure. District staff denied the request, indicating again that the district would no longer be providing that mode of general education instruction. On August 28, 2020, the district provided written notice of their response to the parent’s request for asynchronous distance learning like that provided during the pandemic school closure. In the notice, the district explained that the district was resuming in-person learning for all students and that general education teachers would no longer provide asynchronous distance learning in the manner they had during the closure. The notice explained that the parents and school staff agreed the student benefits from additional support in general education classes and this support is available from a paraprofessional when the student is attending school in-person. The notice included other options considered and rejected. The district properly provided prior written notice of their response to the parent’s request to change the student’s placement to asynchronous distance learning. However, although the IEP team offered various placement options, it failed to make a determination as to the appropriate placement based on the student’s disability-related needs.
Following the IEP team meeting on August 27, 2020, the district provided the parents with a copy of the student’s revised IEP. Upon reviewing the IEP, the student’s parents expressed concern regarding documentation of the annual review of the student’s previous IEP goals, as they did not recall them being discussed during the meetings. The district has a practice of taking notes regarding decisions made during the IEP team meeting on an IEP team meeting agenda, using this information to complete the student’s IEP following the meeting, and providing the final draft of the IEP to the parent soon after the meeting and prior to implementation. As part of the complaint investigation, district staff provided copies of the agendas used during the IEP team meetings. Staff indicated the August 24, 2020, meeting agenda was screen-shared with the family during the virtual IEP team meeting, but they were not sure the parents could see the agenda. The agenda for the August 24, 2020, meeting indicates the team discussed the strengths of the student; concerns of the parents and others; the student’s present levels of performance, including the student’s credit standing and IEP goal progress; transition goals and progress; schedule options, including three options for mode of instruction; and strategies and accommodations to address the student’s needs. Interviews with district staff members present confirmed the team properly reviewed annual goal progress during the August 24, 2020, meeting.
Given the potential for disruption in student learning created by school closures due to the COVID-19 pandemic, the department has encouraged IEP teams to incorporate contingency plans in students’ IEPs should a district need to change the way instruction is provided in response to local conditions. Contingency plans must be designed to continue to provide the student with a FAPE despite changing conditions and must be based on the student's individual needs. (Wisconsin Department of Public Instruction, COVID-19 Special Education Question and Answer Document, revised 11/19/2020).
In this student’s case, the district included three contingency plans in the student’s IEP based on the three learning options discussed at the August 24 IEP team meeting. The IEP team’s intention was to implement the contingency plan based on the option that the student and parents chose. This demonstrates a misunderstanding of the purpose of a contingency plan. The contingency plan must clearly communicate the services the IEP team has determined the student requires in order to receive FAPE should the district need to change the mode of instruction in response to local conditions, and must be implemented as written should those conditions occur. While the student and parents are part of the IEP team, the services included must be determined by the team as a whole. In addition, the services the district actually provided did not reflect any of the three plans described in the IEP. By including multiple contingency plans, the district left its commitment of services and resources to the student unclear and did not properly develop or implement the student’s IEP.
Whether the district properly responded to a parent request for a copy of the student’s IEP.
School districts must provide the parent with a copy of the student’s IEP at no cost and prior to its implementation. (34 CFR § 300.322[f] and 34 CFR § 300.503[a]). On September 1, 2020, the teacher sent an email to the parents with a copy of the student’s schedule indicating a two-hour block of English IV three days a week via distance learning and one in-person Small Engines class. On September 2, 2020, the student began receiving instruction in English IV from a special education teacher three days a week for two hours each day via distance learning and attending the Small Engines class in-person with paraprofessional support. The student’s parents noticed the IEP did not accurately reflect the services the student was receiving. The parents contacted the district and requested a copy of the IEP that reflected the services the student was receiving. The district did not provide a revised copy of the student’s IEP to the parent.
Since the complaint was filed against the district, the IEP team has reconvened, determined placement, and revised the Program Summary in the student’s IEP to accurately reflect the services the student began receiving on September 2, 2020. The parents received a copy of the IEP in October 2020. No further student-specific actions are required. Within 30 days of this decision, the district must develop a district-wide corrective action plan to ensure staff understands how to properly include contingency plans in student’s IEPs. Submit the corrective action plan to Anita Castro, Department of Public Instruction, Special Education Team, 125 South Webster Street, Madison, WI, 53703.
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.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support