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IDEA Complaint Decision 21-038

On September 27, 2021 (form dated September 16, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from##### (complainant) against #### (School District. On October 13, 2021, the department received notification that the parties agreed to participate in mediation relating to the issues in this complaint and a request to extend the time to complete the complaint investigation. On December 6, 2021, the department’s investigator spoke with the complainant and learned the parties did not resolve the issues, and as such, the department resumed the complaint investigation. This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2021-22 school year, properly developed and implemented the individualized education program (IEP) of the student.

School districts meet their obligation to provide a free and appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs. The school district must properly document the program in the student’s IEP and implement the program as articulated in the IEP. The IEP must be reasonably calculated to enable the student to make appropriate progress. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. At the beginning of each school year, each district must have an IEP in effect for each student with a disability, and special education and related services must be provided to the student in accordance with the student’s IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Special education is specially designed instruction to meet the unique needs of a student with a disability. It is provided by appropriately licensed staff at no cost to the student or the student’s parent. Special education may be provided in a wide variety of settings, including the classroom, the home, hospitals, and other institutions. 34 C.F.R § 300.39: Wis. Stat. § 115.76 (15).

The IEP in effect at the beginning of the time period relevant to this complaint was developed on April 28, 2021. The student who is the subject of this complaint has disability related needs requiring specially designed instruction in early learning and attending skills and speech and language services. The student also requires related services of school nursing services and transportation to benefit from special education. The student requires full-time one-to-one nursing care throughout the school day, both in the school environment and on the school bus.

On July 20, 2021, a district staff member notified the parent the district did not have a nurse available to assign to the student for the upcoming school year but was working with several agencies to hire a private school nurse. On August 19, 2021, the district contacted the parent again to inform her a nurse had still not been hired for the student. Despite many efforts, the district acknowledges they have been unable to hire a one-to-one specialized private care nurse for the student. On September 1, 2021, several district staff members contacted the parent and determined they would begin sending work packets for the student to complete at home. The Speech and Language Pathologist provided the parent with resources to target the student’s expressive and receptive language skills and videos/recordings of speech sounds to support articulation. On September 27, 2021, the classroom teacher contacted the parent to arrange a virtual learning platform and trained the parent on its use. The classroom teacher also sent home written directions on how to access the virtual learning platform in the backpack of the student’s sibling. On October 6, the student attended the virtual classroom. On October 7, 2021, the special education teacher called the parent to inquire about the student joining the virtual platform. The parent informed the school staff the student would not be participating in the virtual classroom for the remainder of the week as the family was moving. On October 11, 2021, the parent notified the special education teacher that the student was unable to participate in the virtual instruction due to internet issues. On October 12, 2021, a district staff member dropped off additional work packets and an internet hotspot for the student.

On October 21, 2021, the IEP team met and determined that until the district could hire a nurse to allow the student to attend school in person, the district would provide in-person homebound instruction through the district’s Home and Hospital services program. The parent did not attend the meeting. On November 9, 2021, the student began receiving specially designed instruction in early learning and attending skills for 30 minutes, one time per week, through the Home and Hospital services program. Additionally, the Home and Hospital teachers assisted the student with activities provided by the Speech and Language Pathologist. The district also continued to provide the student access to the virtual learning platform for 45 minutes per day. Between September 27, 2021, and December 10, 2021, the classroom teacher and special education teacher contacted the parent daily to remind the parent the virtual classroom was available for the student daily from 8:15-9:00; however, the student rarely attended the virtual classroom.

While the student’s IEP was properly developed, the district acknowledges that it did not properly implement the student’s IEP during the 2021-22 school year due to its inability to hire a one-to-one nurse. The department recognizes the district is making conscientious efforts to fill the position and that finding candidates for such a position is uniquely challenging and difficult during the COVID-19 pandemic. As soon as the district is able to hire a one-to-one specialized care nurse, the student’s IEP team must reconvene within 15 days of the student’s return to school and determine the amount of compensatory services in both specially designed instruction and speech and language services, the student requires to remedy the denial of FAPE. Within 10 days of the IEP meeting, to determine the compensatory services the student requires, the district must send a copy of the revised IEP to the department. The district must also provide updates to the department on its efforts to hire a one-to-one nurse.

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