On March 16, 2021 (form dated March 10, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against ##### (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2020-21 school year:
- Properly allowed the parent of a student with a disability an opportunity to meaningfully participate in the development of the individualized education program (IEP);
- Properly developed the IEP of the student regarding annual goals and a crisis plan; and
- Properly responded to a request from the parent to review pupil records.
Whether the district properly allowed the parent of a student with a disability an opportunity to meaningfully participate in the development of the IEP.
Each public agency must take steps to ensure that one or both parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate. (34 CFR § 300.322). In developing each student’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. (34 CFR § 300.324[a][ii]). If a district develops a draft IEP prior to the IEP team meeting, the district should provide the parent with a copy of its draft proposals prior to the meeting to give the parent an opportunity to review the recommendations of the district prior to the IEP team meeting and be better able to engage in a full discussion of the proposal for the IEP. (34 CFR § 300, Comments p. 46678).
On December 7, 2020, the district sent the parent an invitation to attend an IEP team meeting scheduled for January 13, 2021. The district emailed a copy of a draft IEP to the parent on January 7, 2021. The IEP team meeting was held on January 13, 2021, for the purpose of developing an annual IEP and determining placement. During the meeting, the parent expressed concern that the parent had not been given sufficient time to review the draft IEP with an advocate in advance of the meeting and requested the meeting be ended to allow the parent to do so. The district ended the meeting. The IEP team reconvened on January 15, 2021, to allow the parent additional time but also meet the one-year timeline for the student’s annual IEP review. During each of the IEP team meetings, the parent shared concerns and provided input in the development of the IEP. At the conclusion of the meeting on January 15, 2021, the parent requested the district reiterate the parent’s concerns. The district said that there was no time to do so but included documentation in the IEP of the parent’s concerns and the district’s response to each, as discussed during the meeting.
The district provided a copy of the draft IEP to the parent three business days prior to the IEP team meeting and reconvened the meeting to allow additional time for the parent to consider the proposals. During the IEP team meetings, the parent shared concerns and provided input in the development of the IEP. The IEP draft language was revised in response to the parent’s concerns. The district properly allowed the student’s parent an opportunity to meaningfully participate in the development of the IEP.
Whether the district properly developed the IEP of the student regarding annual goals.
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s disability-related needs to enable the student to be involved in and make progress in the general education curriculum. (34 CFR § 300.320[i]). The IEP team must periodically review a student’s IEP, but not less than annually, 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. (34 CFR § 300.324[b]).
During the January IEP team meetings, the IEP team reviewed the previous year’s goals to determine if the student had met them prior to developing new annual goals. One of the student’s disability-related needs documented in the IEP was to initiate greetings with peers. To address this need, the IEP included a short-term objective (STO) that stated, “when a friend approaches [the student], [the student] will wave to that friend to initiate a greeting independently...with no more than one redirection.” The student’s baseline level was 0%, and the desired level of attainment was 60%. The procedures for measuring progress toward this STO included observation and data collection. Documentation of the annual review indicates the student met this STO with 100% proficiency based on progress reports from Quarters 1 and 2 of the 2020-21 school year. The IEP team determined the student had exceeded the level of attainment for the STO, and the objective was removed from the IEP. The parent asked that the STO be continued because the parent did not agree that the student had achieved the STO. The district refused the request citing the collected data, and documented their response on a Notice of Response to an Activity Requested by a Parent.
During the complaint investigation, district staff explained that the STO was added to the student’s IEP last year when the student was attending music class in person and was having difficulty socializing with peers. During the first two quarters of the 2020-21 school year, the district temporarily paused in-person learning due to the COVID-19 pandemic, and the student participated in asynchronous learning at home. The STO was not revised to account for the virtual learning environment and lack of access to peers. In order to simulate an opportunity for the student to initiate a greeting by waving, the teacher electronically sent a video of herself greeting and waving to the student. The teacher explained during the complaint investigation that when the student viewed the video of the teacher greeting the student, the student was to wave in response or be cued by the parent to wave to the teacher in response. Since instruction was asynchronous, the district relied on the parent to observe the student while completing the activity and submit progress data to the district. After the student worked on the STO with the parent, the parent emailed the teacher each day to indicate the student had accomplished the task.
In observing the student, the parent believed the student was to initiate the greeting, not respond to a greeting. The parent further explained during the complaint investigation that the student did not initiate or respond by waving at the teacher in the video even after redirection; however, if the parent greeted the student, waved, and then asked the student to wave to the parent, the student would wave to the parent. When the parent completed the waving activity with the student, the parent emailed the teacher indicating, “All Done” or “All done waving!” The parent intended the email to mean the student had finished attempting the activity of waving and was ready to move onto the next activity, not that the student had mastered the objective.
District staff and the student’s parent did not have a shared understanding of the STO and what actions the district would measure to assess the student’s progress toward meeting the goal. The STO was not clearly worded in the IEP, and the student did not have an opportunity to practice or demonstrate the skill during asynchronous instruction at home apart from peers. Within 30 days of this decision, the IEP team must determine whether the student continues to have this disability-related need when socializing with peers. If so, the IEP team must develop a goal or short-term objective that addresses the disability-related need and clearly specify under the procedures for measuring progress what behavior will be observed in order to determine the student has demonstrated mastery.
Whether the district properly developed the IEP of the student regarding a crisis plan.
Seclusion is the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Seclusion may be used only if the student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others, and it is the least restrictive intervention feasible. The room or area in which the student is secluded is free of objects or fixtures that may injure the student, and the student is able to be seen at all times. The duration of the seclusion is only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. (Wis. Stat. § 118.305).
During the IEP team meeting on January 15, 2021, the IEP team considered special factors when developing the student’s IEP and determined the student’s behavior impedes the student’s learning. To address the behavior, the IEP includes a number of positive behavior supports, including tangible rewards, choices, sensory movement breaks, fidget and sensory tools, and foreshadowing. The use of seclusion when the student is a physical threat to self or others is also documented in the program summary. The IEP team conducted a functional behavioral assessment (FBA) and a behavior intervention plan (BIP). The FBA indicates factors that provoke the behavior, where the behavior occurs, and the function of the behavior. The BIP includes additional detail on positive behavioral supports and interventions, as well as crisis procedures to be implemented if the student’s behavior becomes escalated and is “physically aggressive for an extended period of time.” In that case, the IEP team and trained staff will utilize “seclusion by removing [the student] from the setting (if [the student] refuses to leave, remove [the student’s] peers).” During the IEP team meeting, the district clarified that the crisis procedures include the use of seclusion and added the terminology to the BIP. The parent requested the use of seclusion not be included in the student’s IEP and BIP. Seclusion had not been used with the student since September 2019. The district refused to remove seclusion from the student’s IEP, citing past incidents. The district documented their response to the parent’s request on the placement notice and on the Notice of Response to an Activity Requested by a Parent.
In March 2020, Wis. Act 118, revised section 118.305 of the Wisconsin Statutes addressing the use of seclusion and restraint in schools. As a result, IEP teams are no longer required to document the use of seclusion in a student’s IEP. Given both the changes to the law and the fact that seclusion has not been used with the student during the 2020-21 school year, the district may remove the reference to seclusion in the student’s IEP and BIP. However, if the IEP team chooses to document the anticipated use of seclusion in the IEP and BIP, clarification must be provided regarding when seclusion will be used by defining “extended period of time;” clarifying the duration of the seclusion is only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and clarifying that the seclusion area is free of objects or fixtures that may cause injury to the student. Within 30 days of the complaint decision, the district must submit a revised copy of the IEP and BIP to the department.
Whether the district properly responded to a request from the parent to review pupil records.
The parents of a child with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, educational placement, and the provision of FAPE to the child. (34 CFR § 300.501[a]). 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. In no case may the district response be more than 45 days after the request has been made. (34 CFR § 300.613).
In the summer of 2020, the parent verbally requested the district provide a copy of the student’s accident or injury reports and seclusion or restraint reports. On July 6, 2020, the district emailed the requested records to the parent. On August 26, 2020, the parent sent an email to the district requesting a copy of the student’s “entire record,” including school, district, state, police, medical, dental, and financial records. The parent also asked for any incident or accident reports, anecdotal notes, teacher notes, and records of observations in addition to a variety of other documents. On September 4, 2020, the district sent the requested documents to the parent via certified mail. The district notified the parent that there were no police reports, medical or dental records, financial reports, anecdotal records, or teacher notes on file. During the IEP team meeting on January 15, 2021, the parent expressed concern that there were missing records in the documents sent by the district and requested to come into a district building to sit with a staff member and go through the student’s records. The district refused this request, explaining that they had provided all of the student’s records and that meeting one-on-one would not result in any new records being provided. The district offered to answer any questions the parent may have about the documents that were provided. The district documented their response to the parent’s request on the placement notice and on a Notice of Response to an Activity Requested by a Parent. The district properly responded to a request from the student’s parent to review pupil records when they mailed the record to the parent within 45 days of the request and prior to an IEP team meeting.
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