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IDEA Complaint Decision 20-064

On November 11, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parents) against XXXXX (district). This is the department’s decision regarding the complaint. The issues identified are whether the district, beginning November 11, 2019:

  • Properly developed the individualized education plan (IEP) of a student with a disability;
  • Properly determined the student’s educational placement in the least restrictive environment (LRE); and
  • Properly provided the student’s parent a copy of the IEP prior to its implementation.

The IEP initially in effect for the student who is the subject of this complaint, was developed in June of 2019. This IEP was due for an annual review in May 2020. On March 18, 2020, all public and private K-12 schools in Wisconsin were ordered to close for in-person instruction due to the COVID-19 pandemic. In May, the district and the parents agreed to postpone the annual IEP team meeting due to the ongoing pandemic. The student’s IEP team met on October 15, 2020, to conduct the annual review meeting and develop a new IEP for the student. Under federal and state law, special education complaints may only investigate matters that occurred within one year of the department’s receipt of a complaint. As such, this investigation and decision is limited to matters beginning with the IEP developed on October 15, 2020.

This statewide order closing all schools for in-person instruction expired on June 30, 2020. As of July 1, 2020, each school district has determined how in-person services would be provided to students who required them in order to receive a free appropriate public education (FAPE), in coordination with local public health authorities and in compliance with any local orders. As of the date of this decision, the district has not provided in-person services to any students in the district, although the district continues to provide virtual instruction. The district has instructed each student’s IEP team to develop a “contingency” to address the student’s unique needs in the virtual environment. IEP teams have also been discussing the extent to which each student requires compensatory services because of the lack of in-person instruction. The student’s IEP team discussed both of these topics at the October IEP team meeting and documented their determinations.

Whether the district properly developed the individualized education plan (IEP) of a student with a disability.

At the beginning of each school year, a district must have in effect an IEP for each child with a disability. (34 CFR § 300.323[a]). The IEP must be individualized and developed based on the unique, disability related needs of the student. The IEP must be reasonably calculated to allow the student to make appropriate progress, both in the general education curriculum and toward their IEP goals. The IEP must include a statement of the special education services to be provided to the student, and if the student’s IEP team determines the student’s behavior impedes the student’s learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. (34 CFR §§ 300.320[a][4], 300.324 [a][2][i]).

The student’s parents have repeatedly expressed concern that the student would benefit from occupational therapy (OT) as a related service to address the student’s sensory needs. In previous evaluations, the IEP team has not found the student has demonstrated a need for OT. In response to the parents’ concerns, the district reconvened the student’s IEP team on December 15, 2020. The team discussed the parent’s concerns about the student’s sensory needs and agreed that the IEP team would conduct a reevaluation to assess the student’s need for OT when the district resumes face-to-face instruction. There is currently no state or local order prohibiting in-person instruction or assessments. If an in-person assessment is required in order to conduct the reevaluation, the district must proceed and cannot wait until the district resumes face-to-face instruction. In doing so, the district should consult with local health authorities and follow all health and safety protocols.

Within 60 days from the date of this decision, the district must submit to the department documentation that the reevaluation has been completed. Within 30 days from the date of this decision, the district must submit to the department a corrective action plan to ensure that in-person assessments are provided if required in order to complete a special education evaluation, including reevaluations.

Since the IEP team has identified that the student’s behavior interferes with the student’s learning, the student’s parents believed the IEP team should have conducted a functional behavioral assessment and developed a behavior intervention plan. State and federal special education law only require a functional behavioral assessment when a student has experienced a disciplinary change of placement or the student has been subjected to seclusion or restraint on more than one occasion. The student has not experienced a disciplinary change of placement during the time period relevant to this complaint or has been secluded or restrained. At the October IEP team meeting, the team specifically identified the student’s refusal to participate in non-preferred activities, inability to remain in designated area, and inability to attend to instruction as behaviors that were barriers to the student’s learning. The student’s IEP specified adult supervision, visual supports, noise-cancelling headphones, and movement breaks as positive behavioral interventions and supports. The IEP also provided for specialized instruction in social skills and attending to address the student’s behavior needs. The IEP team properly developed the student’s IEP with regard to the student’s behavioral needs.

The student has been participating in school virtually since the beginning of the 2020-21 school year as a result of district policy limiting all instruction to virtual means only. In an interview with the department’s investigator, a district employee noted that the student’s attendance has been poor this year, but was being addressed outside the IEP process. The student’s parent attributes the student’s poor attendance in part to the student’s disability-related needs.

If a student cannot access the virtual instruction due to their disability related needs, then the IEP team must consider whether in-person instruction is required in order for the student to receive a free appropriate public education (FAPE). Given the student’s behavioral needs as identified by the IEP team, the IEP team should consider whether virtual learning is an appropriate method for the student. Both the U.S. Department of Education and the department have issued guidance indicating districts must continue to provide a FAPE to students with disabilities even when schools have elected alternate modes of instruction to address pandemic concerns.

In failing to consider on an individualized basis whether the student may need in-person services to address the student’s disability related needs, the district failed to properly develop the student’s IEP. Within 30 days of the date of this decision, the district shall convene the student’s IEP team to consider whether in-person services are necessary for the student to receive FAPE. The district must submit to the department within 10 days of the IEP team meeting, documentation that in-person services were considered and provided if required. Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure that IEP teams, on an individualized basis, consider whether in-person services are required in order for the student to receive FAPE.

Whether the district properly determined the student’s educational placement in the least restrictive environment (LRE).

To the maximum extent appropriate, students with disabilities must be educated with children who are not disabled. Special classes or other removal from the regular education environment must occur only if the student’s needs cannot be met satisfactorily in the regular education environment with the use of supplementary aids and services. (34 CFR § 300.114[a][2]).

Both the student’s October IEP and “contingency” plan specify that the student will be removed full time from the regular education environment. The IEP documents the reasons why the student will not participate full time in the regular education environment as, “[The student’s] pre-academic skills are impacted by [the student’s] delays in attending, participating and communication. This affects [the student’s] ability to effectively and appropriately participate and complete age-appropriate activities and keep pace with same aged peers. [The student] needs a small group setting with repetition and review and more immediate feedback.” The IEP does not include documentation of other options the team considered to permit the student to participate in the regular education environment and the reasons those options were rejected. During the December IEP team meeting, the team clarified the student would participate in the general education setting during specials, a daily 30 minute morning meeting, and 15 minutes at the beginning of reading class. The team also agreed to reconvene to add additional regular education participation in core academic classes throughout the year. The statement in the student’s IEP regarding participation did not change.

In failing to adequately document why the student’s needs cannot be met satisfactorily in the regular education environment, the district did not properly determine the student’s placement in the LRE. Within 30 days, the district shall provide the department the proposed dates for the reconvened IEP team meetings specified in the December IEP. The department will review IEPs produced at those meetings to ensure the team is appropriately documenting why full-time participation in the regular education environment cannot be achieved satisfactorily with the use of supplementary aids and services, including any options considered and the reasons rejected.

Whether the district properly provided the student’s parent a copy of the IEP prior to its implementation.

Parents must receive a copy of a student’s IEP prior to its implementation. (34 CFR § 300.503[a]). The parents received a copy of the IEP developed at the October 15, 2020, IEP team meeting on November 16, 2020. The IEP was implemented by the district on November 17, 2020. The district properly provided the student’s parents a copy of the IEP prior to its implementation.

This concludes our review of this complaint. All noncompliance identified above must be corrected within one year of the date of this decision. 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