On June 16, 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 identified are whether the district, during the 2020-21 school year, properly developed and implemented the individualized education program (IEP) of a student with a disability and properly provided the student’s parent a copy of the IEP prior to its implementation.
Whether the district 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. The school district must properly document the program in the student’s IEP and implement the program as articulated in the IEP. The IEP must be reasonably calculated to enable the student to make appropriate progress. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. At the beginning of each school year, each district must have an IEP in effect for each student with a disability, and special education and related services must be provided to the student in accordance with the student’s IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Special education is specially designed instruction to meet the unique needs of a student with a disability. It is provided by appropriately licensed staff at no cost to the student or the student’s parent. Special education may be provided in a wide variety of settings, including the classroom, the home, hospitals, and other institutions. 34 C.F.R § 300.39: Wis. Stat. § 115.76 (15).
Prior to the 2020-21 school year, the student who is the subject of this complaint received homebound education due to ongoing health concerns. At the beginning of the 2020-21 school year, the district offered all parents three options for their children’s schooling: fully in-person, fully virtual, or a hybrid of both. The student’s parent chose virtual schooling due to the student’s medical issues. The student’s parent also indicated that during the coronavirus pandemic, the parent did not want district staff to visit the student in person at home.
The program summary section of the student’s IEP developed at the September 24, 2020, IEP team meeting reads, in part, “[d]ue to the pandemic [the student] receives [their] specialized instruction from mom that I communicate with her on a weekly basis.” The instruction was to be provided daily, five times per week. The district did not provide weekly communication via email and rarely provided materials for the parent to use with the student. Procedures for measuring the student’s progress toward meeting the annual IEP goals was described as “Mom will continue to share growth of [the student] at home. She will share with me assignments that have been completed and work that has been done to reach [the student’s] goal.” Additionally, an email from district staff to the parent on November 5, 2020, stated, “Just wanted to reach out to you and send [student’s name] report card. I know you have entered most of the data in yourself.” The district improperly developed the student’s IEP by requiring the student’s parent, not the special education teacher, to provide the student’s specially designed instruction and monitor the student’s progress toward meeting IEP goals.
In addition, the district did not properly implement all aspects of the student’s IEP. For example, the September 24, 2020, IEP indicates the student needs assistive technology and mentions several different devices, including a Nova Chat, an iPad, a modular arm, and a MATT connect. While the student had access to an iPad at home, the district did not provide the student home access to other assistive technology devices. In addition, the related services section of the IEP indicates the district was to provide the student physical therapy 30 minutes per month by the therapist via email, phone, or zoom. The physical therapist’s notes show several months where these services were not provided. The district did not properly develop or implement the student’s IEP.
Whether the district properly provided the student’s parent a copy of the IEP prior to its implementation.
School districts must provide the parent with a copy of the student’s IEP at no cost and prior to its implementation. 34 CFR §§ 300.322(f), 300.503(a). The IEP team met on September 24, 2020. The projected date of implementation of the changes to the student’s IEP was October 19, 2020. The placement form indicated the parent was provided with the written notice of placement on October 14, 2020. However, the student’s parent did not receive the revised IEP and placement notice until staff sent it via email on October 30, 2020. The district did not properly provide the student’s parent a copy of the IEP prior to its implementation.
Within 10 days of the date of this decision, the IEP team must reconvene to review and revise the student’s IEP to ensure that a special education teacher provides the student’s specially designed instruction and monitor the student’s progress toward meeting IEP goals. The team must also determine compensatory services needed to address the failure to properly develop and implement this student’s IEP during the 2020-21 school year. The district must provide the student’s revised IEP to the department within 10 days of the date of the IEP team meeting. The district must also review the IEPs of all other students with disabilities whose parents chose virtual only instruction for the 2020-21 school year to ensure they were properly developed and implemented, and if not, consider the compensatory services each student requires.
In addition, within 30 days of this decision, the district must submit a corrective action plan to the department. The corrective action plan must ensure IEPs for students receiving fully virtual instruction are properly developed and implemented and that the district properly provides parents copies of IEPs prior to their 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.
Paul A. Manriquez
Assistant State Superintendent
Division for Learning Support