On March 8, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ##### School District (district). This is the department’s decision regarding that complaint. The issues are whether the district, since March 9, 2020, properly developed and implemented the individualized education program (IEP) of a student with a disability.
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. The IEP team must determine the special education services (including supplementary aids and services, specially designed instruction, related services, and program modifications or supports for school personnel) needed to meet the student’s disability-related needs and allow the student to make progress in the general education curriculum. 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. 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. (Wis. Stat. § 115.787; 34 CFR §§ 300.320; 300.324).
The IEP team developed the IEP in effect at the beginning of the time period relevant to this complaint on October 21, 2019. The IEP stated that the student’s disability interfered with their ability to independently engage with and complete assignments, deal with distractions related to technology and accept feedback from teachers. The IEP included three annual goals for the student, one of which was to increase the student’s ability to complete in-class work and homework without prompting. The resulting IEP included two ten-minute periods weekly of specially designed instruction in social skills focused on accepting feedback and redirection to class content. However, the IEP did not include any services to address the student’s need to improve engagement with and completion of assignments or to teach the student the skills needed to increase completion of in-class work and homework without staff prompting. The IEP also indicated staff would provide the student supplementary aids and services of providing paper copies of assignments “upon student request” and an unspecified amount of additional time for the student to complete electronic assignments “upon request.” These descriptions do not make the district’s commitment of resources clear to those responsible for implementing the IEP. These development errors rendered the IEP impossible to implement properly.
On October 8, 2020, the district held an IEP team meeting to develop the student’s annual IEP and determine the student’s placement. The team revised the student’s IEP to include an updated goal addressing the student’s need to improve self-monitoring and work completion and special education services to support that goal. The team revised the special education services to describe a clear amount and frequency, such as “extra time on assessments, 150%.” The team removed descriptions such as “upon student request.”
School districts must consider the impact of student absences on the ability of the student to make progress in the general education curriculum and toward attaining IEP goals. If a student is absent from school for a prolonged period of time, the district must convene an IEP team meeting to discuss the student’s IEP and determine if it is necessary to modify the program in order to ensure the continued provision of FAPE.
On March 13, 2020, in response to the COVID-19 health emergency, the Wisconsin Department of Health Services (DHS) issued a statewide order closing schools effective March 18, 2020. On March 17, 2020, DHS issued a new statewide order closing school for all in-person pupil instruction and extracurricular activities, which was extended through June 30, 2020. District staff worked without providing instruction for the first three days of the closure (Wednesday through Friday) to prepare for virtual instruction. The district was on spring break the following week of March 23, 2020. By March 30, 2020, the district began providing all students with distance learning via virtual instruction.
District staff determined they could implement the student’s IEP in a virtual setting, and as such, did not revise the IEP at the beginning of school closures. However, during the time between March 17, 2020, and the last day of school on June 9, 2020, the student was absent for a prolonged period of time and did not receive the majority of their special education services, despite numerous documented attempts by district staff to engage the student in virtual instruction. The district failed to reconvene the student’s IEP team to determine the modifications to ensure the continued provision of FAPE.
Within 30 days of the date of this decision, the district must conduct an IEP meeting to determine the amount of compensatory services, in the form of tutoring, the student requires due to the district’s failure to properly develop and implement the student’s IEP from March 9, 2020, through October 8, 2020, including its failure to conduct an IEP team meeting when the student did not access virtual instruction. The district must send a copy of the IEP documenting the IEP team’s decision of the compensatory services to the department within ten days of the IEP team meeting.
Additionally, within 30 days of this decision, the district must develop and submit to the department a corrective action plan (CAP) to ensure that:
- Services in IEPs are described so the level of the LEA’s commitment of resources is clear to all involved in implementing the IEP;
- IEPs include special education services that will be provided to address all annual goals; and
- When students are repeatedly absent, IEP teams reconvene to modify the IEP as needed to address the reasons for the absences and ensure the student continues to receive FAPE.
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