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IDEA Complaint Decision 21-029

On August 25, 2021 (form dated August 17, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from ### (complainant) against the ### (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning August 25, 2020, properly developed and implemented the individualized education program (IEP) of a student with a disability to enable the student to participate in extracurricular and non-curricular activities.

Each school district must take steps to provide students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. Each student’s IEP team must determine whether the student needs supplementary aids and services in order to participate. Supplementary aids and services must be described in a manner that makes the district’s commitment of resources clear to the student’s parent and all involved in developing and implementing the IEP. The description of the amount, frequency, location, and duration must be appropriate to the specific service. 34 CFR § 300.117.

IEP of the student who is the subject of the complaint indicates the student has disability-related needs in social skills, emotional regulation skills, and self-advocacy. The IEP includes one-to-one adult support throughout the school day in all school environments. Prior to the March 2020 pandemic-related statewide school closures, the student participated in a district-sponsored before and after school program with a capacity for approximately 100 children with approximately 30 staff members. program was closed during the Spring 2020 statewide school closures. district reopened the program during the summer and fall of 2020 with a reduced student capacity of 40 and six staff members to allow for proper safety precautions. The district notified parents the spots for the program during the 2020-21 school year would be limited to students in 3K and 4K first and their siblings, as well as the children of frontline workers and their siblings. Many students with and without disabilities who previously participated, including the student who is the subject of this complaint, were not able to participate in the program due to capacity restrictions.

When district staff learned the student would not be participating in the before and after school program, they met with the complainant to discuss other options for the student. This meeting was not an IEP team meeting. Staff agreed the student’s parent could drop the student off one-half hour before any other students arrived and that the student could remain after school until the parent could pick the student up. This arrangement was in effect at the beginning of the 2020-21 school year. The district did not provide instruction to the student during these times. Rather, the student engaged in preferred projects such as making crafts. In providing this non-curricular activity for the student, the district implemented the student’s IEP. The district provided one-to-one supervision for the student, either by a paraprofessional, a teacher, or administrative staff. In addition, the staff agreed to keep the student after school until other childcare arrangements could be made, providing similar one-to-one supervision. The district made these arrangements to assist the parent, who had started a new job. While the staff provided the student one-to-one adult support during these before and after school times, no instruction or other services were provided during that time. In October of 2020, the district assisted the parent in securing after-school care for the student at a nearby private program. However, the private program discontinued the student’s participation due to the student’s behavior. The district resumed voluntarily providing before and after school care to the student until the end of the 2020-21 school year. The district never intended the before and after school arrangement to be a long-term solution.

Following a request from the student’s parent, the district reconvened the student’s IEP team on June 23, 2021, to determine whether the student required extended day services to receive FAPE. The complainant attended and participated in the IEP meeting. Following the meeting, the district provided the parent prior written notice that it was denying the parent’s requests to add extended day services to the student’s IEP. In its rationale for the denial, the district noted that the services it provided to the student were for the purpose of accommodating the parent’s work schedule. The district also noted the services were not part of the student’s IEP. The district mentioned that outside of the reduced capacity district program; no other students were receiving before and after school care from the district. The district also explained the student’s progress toward meeting goals and objectives was sufficient without extended day services. The district’s refusal to consider them extended day IEP services does not render the IEP inappropriate and the district provided the one-to-one support in providing this non-curricular activity to the student. The district properly developed and implemented the student’s IEP to enable the student to participate in extracurricular and non-curricular activities.

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