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IDEA Complaint Decision 21-037

On September 23, 2021 (form dated September 18, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (School District). This is the department's decision regarding this complaint. The issues identified are whether the district, beginning September 23, 2020, properly developed the individualized education program (IEP) and educational placement 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.

In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must observe the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 330.114(a).

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 LRE. If a student has 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 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).

The student who is the subject of this complaint has complex medical conditions, causing the student to be immunocompromised. In recent school years, including prior to the COVID-19 pandemic, the district provided the student homebound instruction. Given the COVID-19 pandemic and resulting school closure periods, the student participated in virtual instruction. When the district reopened for in-person instruction for most students at the beginning of the 2020-21 school year, the student continued to receive virtual instruction. The student participated in virtual instruction as the student's health condition allowed. While the student made some progress toward meeting IEP goals, the student's progress was not as consistent during virtual instruction as it was during in-person homebound instruction.

Beginning in the late spring and early summer of 2021, the student's parents contacted several district-level administrators, school board members, and others concerned about the district's plans for COVID-19 mitigation measures for the fall of the 2021-22 school year and about the student's inconsistent progress during virtual instruction. The student's IEP team convened to discuss the parents' concerns on September 8, 2021. District staff agreed homebound instruction would be more effective to help the student make better progress than virtual instruction only. The IEP includes a plan indicating when the student's medical team believes it is safe for district staff to come into the student's home to deliver homebound services, the district will do so. This plan includes appropriate descriptions of the amount and frequency of homebound services. The IEP also includes plans to deliver services to the student virtually until the time homebound services can be provided safely. Given the student's medical condition and the changing circumstances of the COVID-19 pandemic, it is appropriate for the district to plan to seek approval from the student's medical team before starting homebound instruction. The IEP team appropriately determined the student's placement.

Following the IEP team meeting, the parent exchanged emails with the school nurse, who requested the parent provide the medical team's criteria for conditions to be safe enough for the district to resume providing in-person homebound instruction. In late September 2021, the student was hospitalized for an extended period. During that time, the student received some virtual instruction and did some academic work with educational staff at the hospital, but due to the student's medical condition, the student was not always available for instruction, and the district could not provide all IEP services. District staff reached out to the student's parents again, requesting details about the medical team's criteria for the student to be able to access homebound instruction. In early November 2021, upon the student's release from the hospital, the student's parent sent the district a list of mitigation measures that would be required for any staff who would provide homebound services to the student.

The department concludes that the student's IEP lacks sufficient specificity regarding the student's individual needs. It is important that the department acknowledges and commends the dedication of all involved to exercise maximum caution regarding this student. The parent's reasonable concerns regarding the district's COVID-19 mitigation procedures, the district's desire to have the parent provide more specific information about necessary mitigation measures for staff serving the student, and the student's extended hospitalization all contributed to the IEP's lack of sufficient specificity. The IEP does not include specific services to meet the student's health needs, including the additional mitigation measures such as masking, sanitizing, etc., which staff would need to implement immediately upon switching to homebound instruction.

Within 30 days of the date of this decision, the district is directed to hold an IEP team meeting to review and revise the student's IEP. The team must consider and include the specific supports necessary to meet the student's school-related health needs to ensure the student is provided a FAPE in the LRE. This determination should include any COVID-19 prevention and risk reduction strategies necessary. Within 10 days of the date of the IEP team meeting, the district is directed to send a copy of the IEP to the department. Given the unique circumstances of this case, no district-level corrective action is required.

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 or contact the special education team at (608) 266-1781.

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