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IDEA Complaint Decision 21-018

On May 28, 2021 (form dated May 25, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from ### (complainant) against #### (school). This is the department’s decision regarding that complaint. The issues, which occurred during the 2020-21 school year, are described below.

Beginning January 6, 2021, whether the school properly developed and implemented the individualized education program (IEP) of the student regarding transportation as a related service.

Local educational agencies (LEAs) must provide each child with a disability a free and appropriate public education (FAPE). LEAs meet this FAPE obligation, in part, by providing special education and related services as documented in each student’s IEP. In addition to transportation provided routinely to all students, some students with disabilities require transportation (often called “specialized transportation”) as a related service in order to benefit from special education. Each student’s IEP team determines, based on the student’s unique, disability related needs, whether the student needs specialized transportation, and if so, how specialized transportation services will be provided. 34 CFR § 300.107. Prior written notice must be given to the parents of a child with a disability a reasonable time before the LEA proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503.

The school is an independent charter school and is considered an LEA. The LEA does not provide transportation to and from school for all students. Most students walk to school or take public transportation, or their parents provide transportation. During the 2020-21 school year, the student’s parent had difficulty providing the student transportation to and from school. On January 10, 2021, following the parent’s request, the student’s IEP team met to develop the student’s annual IEP and consider whether the student required specialized transportation. In deciding whether the student required specialized transportation due to the student’s unique, disability-related needs, school staff indicated the student can successfully navigate the school building, follow directions, and is able to independently walk to the office to deliver mail and to the kitchen to drop off the meal cart. The IEP team concluded that the student demonstrated grade appropriate skills related to transportation, and consequently, did not require specialized transportation as a related service. However, the LEA did not properly provide prior written notice denying the parent’s request for transportation. On February 19, 2021, the IEP team met again. The team reviewed the student’s current academic and functional performance, and again determined the student did not require specialized transportation to address the student’s unique, disability related needs. However, prior written notice was again not provided. From March 2, 2021, to March 12, 2021, the LEA provided temporary transportation to and from school to assist the parent in establishing a consistent form of transportation for the student. On May 17, 2021, the IEP team, including the parent, reconvened the meeting and discussed the student’s need for specialized transportation. The IEP team determined that the student did not require transportation as a related service, but the LEA did not provide prior written notice. Although the IEP team appropriately determined the student did not require transportation as a related service during meetings on January 10, 2021, February 19, 2021, and May 17, 2021, the LEA did not provide prior written notice to the parent, including a written explanation of why the IEP team determined the student did not require specialized transportation.

Whether the school improperly removed the student from the regular education environment for more time than is indicated in the student’s IEP.

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).

The student’s IEP specifies the student will be removed from the regular education environment for specialized instruction in reading 20 minutes three times per week, self-help and social skills 20 minutes two times per week, speech therapy 30 minutes two times per week, and occupational therapy 60 minutes one time per week. The student remains in the regular education environment, with non-disabled peers, taught by a regular education teacher for all other parts of the day. The student’s parent was concerned the student was being removed from the regular education environment to receive additional supports. However, the student was receiving these supports in the regular education classroom as part of the school’s multi-level system of support. The student was not improperly removed from the regular education environment for more time than specified in the student’s IEP.

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

A student’s parents must be provided with a copy of the student’s IEP prior to the implementation of the IEP. 34 CFR § 300.503(a). Following the IEP meeting on January 10, 2021, and prior to the implementation date of January 19, 2021, a school staff person placed a copy of the IEP in the student’s backpack. At the end of March, the parent contacted the school to request another copy of the IEP. On April 7, 2021, the staff person placed another copy of the IEP in the student’s backpack, provided it electronically, and mailed a copy to the student’s parent. The LEA properly provided the student’s parents a copy of the IEP prior to its implementation.

Within 30 days from the date of this decision, the LEA is directed to provide the parent with prior written notice regarding the parent’s request for specialized transportation. The LEA must also provide a copy of the prior written notice to the department. In addition, within 30 days from the date of this decision, the LEA is directed to submit a corrective action plan to ensure parents are properly provided prior written notice, including a description of the action proposed or refused, an explanation of why the LEA proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected.

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 or contact the special education team at (608) 266-1781.

Sincerely,

Paul A. Manriquez
Assistant State Superintendent
Division for Learning Support

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