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IDEA Complaint Decision 21-026

On June 29, 2021 (form dated June 28, 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 implemented the individualized education programs (IEPs) of two students with disabilities;
  • Properly ensured staff members responsible for implementing IEPs were informed of their specific responsibilities;
  • Improperly utilized seclusion with one of the students; and
  • Properly provided the students’ parent copies of their procedural safeguards.

Whether the district properly implemented the individualized education programs (IEPs) of two students with disabilities.

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. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services, which must be included in the IEP. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). Changes to the IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document (IEP Form I-10) to amend or modify the child’s current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4).

The two students who are the subject of this complaint are siblings. Student #1 gets occasional migraine headaches. The program summary of the student’s IEP during the 2020-21 school year included the administration of ibuprofen or Tylenol to the student in the nurse’s office when the student has a headache. The documented frequency and amount is “PRN.” On April 7, 2021, a district staff member sent the parent an email indicating that the student complained of a headache. District staff did not send the student to the school nurse. Some time passed before the student’s parent could retrieve the email, and upon reading it, the parent called the school nurse, who gave the student medication. “PRN” is a common medical designation that means the administration of medication is not scheduled but is taken as needed. The student should have been sent to the school nurse to receive the Tylenol when she complained of a headache. The IEP was not properly implemented.

Student #2 has a visual impairment, and medical information about the student is on file in the school health office and a student health plan, which is a separate document from the student’s IEP. Student #2’s IEP does not include special education services to address the student’s medical needs. Generally speaking, a health plan is not required to be included in a student’s IEP unless the student’s health issues are related to the student’s disability. However, the student’s parent may request an IEP team meeting to discuss the student’s medical information and determine if any disability-related needs must be addressed in the student’s IEP.

The program summary in Student #2’s IEP during the 2020-21 school year included visual accommodations for the student, including the use of a slant board with a black background for tabletop work or writing activities, the use of a highlighter for focus on visual tasks, and visual prompts related to the student’s routine, behavior reminders, and choice activities. In May 2020, a district staff member determined some of the services were no longer needed or were not effective and discontinued providing the services. An IEP team meeting was not conducted to discuss whether the IEP should be revised, or there was no discussion and agreement with the parent through the use of the I-10 form to make these changes outside an IEP team meeting.

During the complaint investigation, the parent expressed concern that the visual prompts were not consistently provided via an iPad. The IEP does not specify how visual prompts were to be provided to the student; as such, the fact that district staff sometimes provided visual prompts via picture cards does not constitute a failure to properly implement the student’s IEP. The district has acknowledged it did not properly implement the student’s IEP by inconsistently providing a slant board with a black background as specified in the student’s IEP. The district will provide a slant board for all the student’s writing activities moving forward. Within 20 days of this complaint decision, the district must conduct an IEP team meeting to review the student’s IEP and properly determine the supplementary aids and services in Student #2’s IEP. A copy of the IEP must be provided to the department within 10 days from the date of the IEP team meeting. Within 30 days of this complaint decision, the district must submit a corrective action plan to the department to ensure IEPs are properly implemented.

Whether the district properly ensured staff members responsible for implementing IEPs were informed of their specific responsibilities.

Each district must ensure that each service provider is informed of their specific responsibilities related to implementing each student’s IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d). Special education paraprofessionals work under the direct supervision of licensed teachers. A paraprofessional’s responsibilities may include tasks such as supporting the lesson plan of the licensed teacher, providing technical assistance to the teacher, and helping with classroom control or management.

District practice is to give substitute paraprofessionals a folder with a schedule of their responsibilities for the day and additional notes from the special education teacher. The special education teacher checks in with the paraprofessional and provides an overview before the substitute paraprofessional begins providing services. On September 16, 2020, a substitute paraprofessional provided support to Student #2. The student’s special education teacher was present. The parent alleges the substitute paraprofessional was not given any training or information on the student’s needs related to the student’s vision impairment, medical conditions, and communication needs. The parent had previously created a three-page snapshot of the student’s needs for district staff to use as a resource and was concerned that the paraprofessional was not given the resource.

On September 16, 2020, the student’s special education teacher met with the paraprofessional, shared information about the student’s supplementary aids and services, shared additional information provided by the parent, and explained the paraprofessional’s responsibilities. The teacher directed the paraprofessional throughout the day and provided supervision. The district properly ensured staff members responsible for implementing IEPs were informed of their specific responsibilities.

Whether the district improperly utilized seclusion with one of the students.

Seclusion is the involuntary confinement of a student, apart from other students, in a room or area where the student is physically prevented from leaving. Seclusion may be used only if a student's behavior presents a clear, present, and imminent risk to the physical safety of the pupil or others and it is the least restrictive intervention feasible. Wis. Stat. §§ 118.305(1)(i) and (2)(a).

The program summary of the IEP in effect during the 2020-21 school year for Student #2 included breaks on multiple occasions during the school day. On September 16, 2020, the special education teacher directed the paraprofessional to take the student to the sensory room for a break. The student began to cry because they did not want to go, and the paraprofessional did not take the student out of the classroom for a break. The parent subsequently contacted the district about the incident to express concern that the student should not be forced to take a break in the sensory room if the student wants to remain in the classroom to participate in activities with peers. The parent also expressed concern that the sensory room was being used as a seclusion room. District staff explained that breaks are part of the student’s schedule as indicated in the IEP. District staff further explained that the student is not forced to go to the sensory room and that the student typically enjoys the breaks, which also helps the student better focus on schoolwork. During the complaint investigation, district administration shared with the department an investigation they had previously conducted regarding the parent’s concerns about seclusion by interviewing staff and reviewing video footage of the student walking to the sensory room. District administration did not find any indication that staff utilized either seclusion or physical restraint with the student. Use of the sensory room for breaks in accordance with the student’s IEP does not constitute seclusion. The district did not improperly utilize seclusion with the student.

Whether the district properly provided the students’ parent copies of their procedural safeguards.

Districts must provide parents of each student with a disability a copy of the notice of procedural safeguards once a school year. Additionally, districts must provide the parents a copy upon initial referral or parent request for evaluation, upon receipt of the first State complaint or due process complaint in a school year, in accordance with the discipline procedures, and at any time upon request by a parent. 34 CFR § 300.504(a).

The district’s practice is to mail the procedural safeguards notice to parents the first time any IEP paperwork is mailed home each year. District staff mailed the parent copies of the procedural safeguards notice with the invitations to IEP meetings for each student. Documentation on the invitation to an IEP team meeting for Student #1 dated September 25, 2020, indicates “a copy of the parent and child rights brochure is enclosed with this invitation.” Documentation on the invitation to an IEP team meeting for Student #2 dated October 6, 2020, indicates the same. The students’ parent erroneously believed the procedural safeguards notice was required to be included as a part of each IEP team meeting. During the complaint investigation, the parent acknowledged receipt of the procedural safeguards booklet. The district properly provided the students’ parent copies of the notice of procedural safeguards.

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,

Paul A. Manriquez
Assistant State Superintendent

Division for Learning Support

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