On June 18, 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 issue identified is whether the district, during the 2020-21 school year, properly implemented the individualized education programs (IEPs) of a student with a disability.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the IEP, and implementing the program articulated in the IEP. School districts should consider the impact of a student’s absence on the student's progress and performance and determine how to ensure the continued provision of FAPE in order for the student to continue to progress and meet the annual goals in their IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. Letter to Clarke, 107 LRP 13115 (OSEP 2007). If the student is absent from school for a prolonged period of time, it may be appropriate for the LEA to reconvene the IEP team to determine if it is necessary to revise the student’s IEP or placement. Letter to Balkman, 23 LRP 3417 (OSEP 1995). Given the potential for disruption in student learning created by school closures due to the COVID-19 pandemic, the department encouraged IEP teams to consider including contingency plans in students’ IEPs in case a district needs to change the way instruction is provided in response to local conditions. Contingency plans must be designed to provide the student with a FAPE despite changing conditions and must be based on the student's individual needs. COVID-19 Special Education Question and Answer Document, Wisconsin Department of Public Instruction (Revised 5/20/2021).
Due to the COVID-19 pandemic, at the beginning of the 2020-21 school year, the district offered families two enrollment options for middle school students: attending school on a hybrid schedule or enrolling in the district’s online school. The parent wanted the student to attend school virtually but did not take steps to enroll in the virtual school. As such, the district presumed the student would attend school on the hybrid schedule. While there is evidence district staff made some contact with the parent via email and phone, the communications were not effective and led to the student’s prolonged absence from school. The student was continually marked absent from school, and district staff did not convene an IEP team meeting to address possible barriers to learning or the student’s attendance.
The family moved to a different location within the school district, and the student was first marked present upon attending the new district school virtually on December 5, 2020. District staff began implementing the student’s previous IEP by emailing the parent and the student virtual video lessons and activities each week and sending home worksheets. On December 14, 2020, district staff revised the student’s IEP to include a contingency plan for specially designed instruction based on whether the middle school building was open for in-person instruction, operating on the hybrid model both on days when the students attended virtually or in-person, or if the school building was closed for in-person instruction and all students received virtual instruction.
Interviews with district staff demonstrate different understandings about which of the contingency plans were in effect for the student during the 2020-21 school year. A contingency plan must clearly communicate the services the IEP team has determined the student requires in order to receive FAPE should the district need to change the mode of instruction in response to local conditions and must be implemented as written should those conditions occur. By including multiple contingency plans that did not apply to the student’s situation, the district left its commitment of resources to the student unclear and was unable to properly implement the student’s IEP.
Prior to the beginning of the 2020-21 school year, the department issued guidance reminding districts of the importance of monitoring student progress in the general education curriculum and toward their IEP goals that is appropriate in light of the student’s circumstances in both in-person and virtual learning environments. LEAs must monitor student progress carefully and act quickly to revise IEPs if students are not making sufficient progress. COVID-19 Special Education Question and Answer Document, Wisconsin Department of Public Instruction (Revised 8/6/2020). The department also required districts to determine whether students required additional services due to the statewide school closure order of March 2020 no later than within the first six months of the start of the 2020-21 school year. COVID-19 Special Education Question and Answer Document, Wisconsin Department of Public Instruction (Revised 7/23/2020).
On March 24, 2021, the IEP team met and developed the student’s annual IEP. The IEP team made some needed clarifications and improvements to the commitment of resources but carried over the April 2020 annual goals and stated that no progress data had been gathered because of the student’s virtual attendance. The IEP further explained that when the student returned to in-person attendance, the IEP goals would be assessed and revised, and additional services would be determined. Regardless of the mode of instruction, districts are responsible for measuring progress on IEP goals. This is part of determining whether FAPE is being provided to the student.
The student was enrolled in a home-based private education program from April 16, 2021, to June 3, 2021.
Within 10 days of this decision, the district must hold an IEP team meeting to develop an annual IEP for the 2021-22 school year that is reasonably calculated to enable the student to make progress in the general education curriculum and toward IEP goals that are appropriate in light of the student’s circumstances. If the district is providing a virtual program, the IEP team must determine whether participation in that virtual program is appropriate to meet the student’s disability-related needs and, if so, whether special education services will be provided virtually or in person. If in-person services are required, the IEPs must consider whether transportation is required as a related service. The IEP must describe how progress toward IEP goals will be measured.
The IEP team must also determine the compensatory services owed to the student for the failure to implement the 2020-21 IEP and whether the student requires additional services due to the statewide school closure from March-June 2020. The student is not owed compensatory services for the time she was enrolled in a home-based private educational program. The compensatory services and additional services, if applicable, must supplement, not supplant, the student’s regular programming. The district must send documentation of this determination to the department within 15 days of the IEP team meeting. The department strongly recommends the parties consider utilizing the facilitation services of the Wisconsin Special Education Mediation System (WSEMS) for this IEP team meeting.
Within 30 days of the date of this decision, the district shall develop a draft corrective action plan (CAP) for approval to ensure 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. The CAP must also include a plan to ensure staff understands how to properly include contingency plans in student’s IEPs.
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