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IDEA Complaint Decision 21-012 and 21-016

On April 1, 2021 (form dated March 28, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district), assigned case number 21-012. On May 11, 2021, the department received an additional complaint from the parent regarding the same student, assigned case number 21-016. This is the department’s decision regarding both complaints. The issues are whether the district, beginning April 1, 2020:

  • Properly developed and implemented the student’s individualized education program (IEP) regarding special education services to be provided during remote learning due to school closures in Spring 2020;
  • Properly developed and implemented the student’s IEP regarding in-person special education services beginning July 1, 2020;
  • Properly developed and implemented the IEP of a student with a disability regarding communication, including augmentative and alternative communication (AAC), and school-parent communication; and
  • Properly implemented the IEP regarding specialized transportation as a related service, beginning April 20, 2021.

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.

As part of developing the IEP, the IEP team must "consider whether the child needs assistive technology devices and services." 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 COVID-19 pandemic created many special education challenges for school districts and families. On March 13, 2020, 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. By the start of the 2020-21 school year, the statewide emergency school closure order was lifted. However, due to circumstances related to the pandemic, the ability to provide in-person services was limited.

In May 2020, the department issued Bulletin 20-01 requiring school districts to consider for each student with an IEP whether additional services were required due to the impact of the statewide closure order in providing FAPE. (See Department Bulletin 20-01). Districts, through IEP team meetings or use of the I-10 form, were to identify students that regressed or failed to make progress during the period of school closure. Considerations included whether the student was able to learn effectively through remote instruction, the extent and quality of the special education services provided during the extended school closure, as well as whether the IEP goals could be addressed through remote learning. Determinations about these services, including the extent and duration required, must be made on an individual basis, in a collaborative manner. The services must supplement, not displace, the student’s existing educational program.

The student that is the subject of the complaints is in fifth grade. The student is nonverbal and uses augmentative and alternative communication (AAC). The student has a touchscreen tablet with programmed software to navigate through pages of vocabulary to generate electronic voice output. A communication partner modeling AAC behavior at the same pace as the student increases engagement. According to the parent, multi-step navigation to produce phrases and sentences takes significantly more time than normal speech. Back and forth communication is a challenge, but the student is most successful when partners participate by using AAC on the student’s device or their own device.

The IEP team developed the IEP in effect at the beginning of the time period relevant for this complaint on January 29, 2020. The IEP team met to review existing data, conduct a three-year reevaluation, and develop an annual IEP. The IEP team found that the student met criteria for the disability category areas of autism, intellectual disability, and speech or language impairment. The IEP team identified seven disability-related needs, with seven corresponding annual goals, to develop skills related to reading, language development, written expression, mathematics, adaptive skills, health and physical development, and social skills.

Five of the seven goals described mandatory AAC supports, with an option of using AAC within a sixth goal of written expression. The other goal, health and physical development, required communication support in the form of visual and verbal cues to help the student perform physical tasks such as kicking a ball more than once.

In the supplementary aids and services section of the program summary, the IEP identified extensive communication tools: “AAC device and visuals (to include student’s device and a communication partner’s device)” shall be provided all day when at school in all environments. Daily use of aided language stimulation shall be used across the school day when there is a participation requirement or social interaction. The IEP required daily documentation of use of an AAC device.

The IEP also provided 30 minutes of specially designed instruction in communication skills twice per week, including direct support from a speech and language pathologist three out of four weeks per month. The IEP included four program modifications and supports for school personnel, including four communication meetings per year, two hours of assistive technology training for staff working directly with the student at the start of the school year, four one-hour assistive technology training sessions per year for staff working directly with the student, and a daily teacher-parent communication log.

The student was in fourth grade when the pandemic began. The district began providing remote instruction to students on April 6, 2020. The district provided the parent with a document entitled “Prior Written Notice.” It described the services the district would be able to offer the student during the building closure. The district reviewed the student’s existing IEP and listed special education and related services that would be provided virtually during the period of school closure. The district described a total of 45 minutes of specially designed instruction weekly in social skills, daily living skills, and reading. Reading was described as “instruction in reading- consultation with family,” one time per week for 20 minutes. The district required more time to adapt materials and instructional format in order to meet the student’s needs before providing math and written language instruction. The document offered monthly services including 30 minutes of occupational therapy, 20 minutes of physical therapy, and 30 minutes of communication/language services.

The district determined that it would not be able to provide several services during the period of school closure, including, daily living assistance such as hygiene, specially designed physical education, and “direct support for participation/ engagement: transitions, lunch, field trips, recess, specials, academics, use of aided language stimulation, and daily documentation of use of AAC device…” The district stated the IEP team would be reconvened once school resumed to determine whether additional services would be necessary.

The parent and district staff conducted a quarterly communication meeting on April 9, 2020. In that meeting and subsequent emails, they discussed ways to include the student in the general remote classroom given previous challenges with online learning. On April 19, 2020, the parent reported difficulties with the remote classroom communication and notifications. On April 29, 2020, the parent and staff met again. The district developed a personalized remote classroom for the student with individualized assignments and more focused notifications. The student still had access to the materials in the general remote classroom. The district provided an updated Prior Written Notice on May 5, 2020.

After consultation with the parent, staff prioritized specific objectives within the student’s reading and social skills goals. Weekly collaboration with the parent helped the student engage in sequencing activities at home that included temporal words based on stories. For example, the student worked on identifying the beginning, middle and end of a story. District staff collaborated with experts chosen by the parent. They observed video interactions between the student and a private therapist to learn how to better implement one-on-one therapy and AAC modeling. Despite improvement efforts, connecting with the class while remote was a struggle. The parent reported that the student’s responses to video instruction during the closure included “crying, hitting himself in the head, or repeatedly using his device to say “goodbye” due to frustration.”

End of term progress reports reflect the communication challenges during remote instruction, with no progress towards most short-term objectives. The exceptions were two of the five reading objectives and substantial progress through remote, one-on-one speech and language therapy. District staff identified a need for one-on-one instruction, and that some objectives were not possible within the virtual learning platform. Documentation indicated that skills for the missed progress should be assessed when face-to-face instruction resumed to determine if additional services would be required for this student.

The district convened an IEP team meeting on September 2, 2020. The purposes were to develop the student’s annual IEP for the 2020-21 school year, determine the student’s placement, and discuss a new contingency plan.

The IEP carries over annual goals from the prior IEP dated January 29, 2020. The services described in the program summaries for both IEPs are identical. The IEP team added a short-term objective to improve tolerance of face masks. However, the IEP team reduced the number of short-term objectives for the writing, mathematics, social skills, and reading goals. The reading goal focused on identifying “temporal information or events” and the “beginning, middle, and end of a familiar story.” Safety and logistical challenges prompted the IEP team to remove the objective that the student communicate appropriately with a peer from the social skills goal.

On the day after the IEP team meeting, the district provided notice of its contingency plan with hybrid service delivery during the current phase of reentry. The student would be in the building two days per week, receiving a total of four hours of in-person instruction. Hybrid instruction began on September 8, 2020. Observations during the 2020-21 school year indicated that in-person instruction helped the student engage with reading, communication, writing, and mathematics. The student was able to resume physical education and independence training, making progress towards annual goals. After the district provided second quarter progress reports on February 4, 2021, the parent emailed a concern regarding the social skill goal. The district had noted the student’s frequent use of “goodbye” to end interactions as a sign of progress. This behavior had been a baseline in previous years. The parent believed the behavior showed the student was shutting down when frustrated, indicating a loss of communication and language ability. The IEP team promptly revised the IEP without a meeting to improve the description of the social skill goal on February 23, 2021.

District staff organized AAC social zoom events for the student and another classmate. After a meeting on December 16, 2020, to discuss concerns regarding access to virtual instruction, the district added AAC symbol paths to Power Point presentations for morning Zoom sessions. Staff reported the student was able to better participate in morning Zoom sessions that occurred while the student was in the school building with in-person AAC modeling support. The student and classmates returned to in-person instruction four days per week on April 20, 2021.

Whether the district properly developed and implemented the student’s IEP regarding special education services to be provided during remote learning due to school closures in Spring 2020.

On December 7, 2020, the district determined that the student did not need additional services, based on scoring from five questions:

  1. Did the student make progress in the general education curriculum during the spring of 2020 and during the 1st quarter of the current year?
  2. If the student’s annual IEP was held between March 13 and the current date, did the student adequately meet their IEP goals?
  3. Is the student on track to adequately meet their current IEP goals by the end of their IEP?
  4. Have the student’s disability related needs remained the same or improved during the closure?
  5. If the student was referred for an initial evaluation or referred to determine a new disability area during the spring of 2020, was the evaluation and subsequent IEP completed within the legal timeframe?

For this student, the district answered questions one through four as “yes,” and question five as “not applicable.” According to this score of zero “no” answers, the student did not qualify for additional services. The district made this determination without input from the full IEP team. Reports from June 11, 2020, document the student’s lack of progress during the closure toward IEP goals, the need for one-on-one instruction, and that some objectives were not possible within the virtual learning platform. For fall, the IEP team reduced short-term objectives. The student began making progress towards IEP goals in-person during the 2020-21 school year. However, this progress was delayed as the goals and levels of attainment were carried over from the previous year. The district developed and implemented the IEP to the extent possible during the school closure. However, the district’s additional services determination failed to consider the lack of progress during the closure, reduced short-term objectives, and delayed progress toward the annual IEP goals.

Within 30 days of this decision, the district must hold an IEP team meeting to determine the amount of additional services required for the student. These services must supplement existing programming. The district shall send documentation of this determination to the department within 15 days of the IEP team meeting.

Whether the district properly developed and implemented the student’s IEP regarding in-person special education services beginning July 1, 2020.

The district began providing the student with in-person services at the beginning of the school year, and the student’s contingency plan was fully implemented. Reports demonstrate progress toward the annual IEP goals and use of AAC device. The district properly developed and implemented in-person services.

Whether the district properly developed and implemented the individualized education program (IEP) of a student with a disability regarding communication, including augmentative and alternative communication (AAC), and school-parent communication.

The district properly developed the student’s IEP to address the student’s disability need related to communication and provided AAC support during the 2020-21 school year. The IEP addressed the student’s communication needs, in part, through goals, short-term objectives, instruction in communication skills, program modifications and supports for school personnel, and assistive technology use and support. The district and parent worked to innovate and improve AAC support throughout the year. Despite challenges with AAC services and modeling while remote, the student made progress towards IEP goals during the 2020-21 school year.

The IEPs in effect during the 2020-21 school year committed the district to providing a daily communication log, described as “communication between teachers and parent with upcoming vocabulary words, units of study, social, and/or classroom words for biweekly AAC programming (through communication log).” Before the pandemic, the district had created this log by hand and placed it in a binder that the student brought home from school every day. The parent contacted the district in November of 2020, reporting that this communication had not been provided. The district began electronic checklists to make communication consistent given hybrid scheduling. The parent reported that after additional discussion, the district resumed providing logs with more academic and AAC content by December.

The district failed to properly implement the student’s IEP school-parent communication regarding the communication log during the first three months of hybrid instruction. The district has since resumed proper implementation of the communication log. No additional corrective action will be required.

Whether the district properly implemented the IEP regarding specialized transportation as a related service, beginning April 20, 2021.

The IEP team determines if transportation is required to assist a child with a disability to benefit from special education and related services, and how the transportation services should be implemented. (34 CFR § 300.107). A school district meets its obligation to provide FAPE to each student with a disability, in part, by providing special education and related services, as documented in the student’s IEP. (34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]).

Full-time, in-person instruction resumed for the student and classmates on April 20, 2021. The IEP of the student provides for specialized transportation as a related service, five days per week, both to and from school. The parent filed a second complaint after the district did not provide transportation for three school days during the week of April 20, 2021. During those three days, the parent provided the transportation. The district acknowledged the lapse in transportation and explained that the delay was a result of the bus company not receiving notice early enough to make the schedule change. The district failed to properly implement the student’s special transportation for three days. No student-specific corrective action will be required.

Within 30 days, the district shall develop a corrective action plan to ensure that whenever the district knows a student’s specialized transportation services will change, the district produces a final transportation document sufficiently in advance to provide timely implementation.

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.

Sincerely,

Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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