On September 2, 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 issue identified is whether the district, beginning September 2, 2020, properly developed the individualized education program (IEP) of a student with a disability.
The Individuals with Disabilities Education Act (IDEA) requires school districts to develop an IEP for each student with a disability for whom they are responsible. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323.
School districts must address the school-related health needs of students with disabilities when necessary to ensure students are provided a free, appropriate public education (FAPE) in the least restrictive environment (LRE) in accordance with the IDEA. If a student has such school-related health needs, the IEP must include necessary services. Irving Independent School District v. Tatro, 468 U.S. 883 (1984). If any member of the student’s IEP team, including the parent, believes the student needs COVID-19 prevention strategies due to the student’s disability-related needs, the IEP team must consider whether and to what extent such measures are necessary, based on student-specific information, which may include medication or health records and/or information provided by medical or health professionals. If the IEP team determines that COVID-19 prevention and risk reduction measures are necessary for a child with a disability to receive FAPE, the team must include them in the student’s IEP. 34 CFR §300.320(a)(4). See also Question C-8 from The United States Department of Education (USED), Office of Special Education and Rehabilitative Service (OSERS) Return to School RoadMap, (September 30, 2021).
August 27, 2021, the complainant requested an IEP meeting to review/revise the student’s IEP and determine placement for the student. The IEP included a description of the student’s present levels of academic achievement and functional performance, including strengths of the student and concerns of the parents. The student’s IEP indicates the student requires in-person specially designed instruction and related services in order to receive FAPE. The complainant raised concerns about the student attending school given the district’s planned COVID-19 mitigation practices including masks being optional for staff and students. The complainant expressed concern about the student’s inability to receive the COVID-19 vaccine and “wishes adults who are servicing (the student), masked.” According to the complainant and the student’s grandparent who attended the IEP team meeting, the IEP team did not discuss the option of masking the adults who came in close contact with the student. The August 27th IEP, states “masking is not driven by IEP.” The IEP discussed other options for the student that included home-based private education, shortened day and virtual instruction.
On September 24, 2021, the IEP team met again to review and revise the student’s IEP. The team determined the student’s interactions would be limited to the students in the classroom, transitions would take place when hallways are empty, related services would take place in the classroom or empty office, and that all staff that come in close contact with the student would be required to wear a mask, Additional protocols were also documented in the student’s IEP including decreasing/limiting staff interactions and serving the student in a 1:1 environment. Additionally, the IEP indicates the principal will notify the family if a positive case of COVID-19 is confirmed for anyone in close contact with the student, staff will maintain routine levels of cleaning, and a sign will be placed on the door of the student’s classroom indicating masks are required. The student began attending school after the September 24th IEP team meeting.
At the time of the August 27th IEP team meeting, district staff believed requiring staff to wear facial masks as a student-specific COVID-19 mitigation strategy was a matter of district policy and was not a proper subject to be discussed by an IEP team. Following the August 27th IEP team meeting, guidance was provided by the department and OSEP (U.S. Department of Education, Office of Special Education Programs) informing IEP teams to consider whether and to what extent COVID-19 prevention measures are necessary, based on student-specific information, for a student with a disability to receive FAPE. Although the district erroneously did not consider the parent’s request for COVID mitigation measures at the August 27, 2021, IEP team meeting, the IEP team discussed and addressed this issue at the student’s September 24, 2021, IEP team meeting. The student’s IEP now includes COVID-19 prevention measures based on the student’s unique, disability-related needs. The IEP team has determined compensatory services for the delay in addressing the needs of the student. No additional corrective action is required.
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 resolution options 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