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IDEA Complaint Decision 21-039

On September 27, 2021 (form dated September 22, 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 that complaint. The issues identified are whether the district, beginning September 27, 2020:

• Properly developed an individualized education program (IEP) that is reasonably calculated to enable the student with a disability to make progress appropriate in light of the student’s unique circumstances regarding reading and mathematics;

• Properly implemented the student’s IEP;

• Properly responded to the parent’s concerns and afforded the parent a meaningful opportunity to participate in the development of the IEP; and

• Properly considered the results of an outside evaluation obtained by the student’s parents.

Whether the district properly developed an individualized education program (IEP) that is reasonably calculated to enable the student with a disability to make progress appropriate in light of the student’s unique circumstances regarding reading and mathematics.

School districts must provide a free appropriate public education (FAPE) to each student with a disability. 34 CFR § 300.101(a). A school district meets its obligation to provide a FAPE by developing and implementing an IEP that meets the student’s unique disability-related needs and allows the student to progress from grade to grade, but if that is not possible, the IEP is appropriately ambitious in light of the student’s circumstances. Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP team must review a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved and revise the IEP, as appropriate, to address any lack of expected progress toward the annual goals and in the general education curriculum. 34 CFR § 300.324(b)(i).

The student who is the subject of this complaint has disability-related needs impacting the student’s math skills, including deficits in basic addition and subtraction fluency which impacts the student’s ability to solve higher-level math problems. The student’s IEP in effect on September 27, 2020, included a goal to increase math skills by increasing fluency on addition and subtraction facts 0-10. The student’s special education program included 30 minutes of specially designed math instruction in-person twice a week. The November 2020 progress report shows the student regressed on this goal. At the January 20, 2021, annual IEP team meeting, the IEP team reviewed the student’s progress and determined the student had not met the math goal. The IEP team attributed the lack of sufficient progress to the student attending school virtually and not working on math facts daily. The IEP team determined in-person instruction was more effective than virtual instruction and increased the amount of in-person specially designed instruction to 30 minutes daily, and revised the student’s math fluency goal. During the complaint investigation, the district explained that in developing the student’s IEP, the IEP team determined the root cause of the student’s delay in math performance is the student’s inability to remember addition and subtraction facts and that this has been a problem from year to year. By focusing on basic math fact fluency, the IEP addressed this root cause.

Another of the student’s disability-related needs is to build reading fluency and rate so that the student can increase reading comprehension and read grade-level texts. The September 2020 IEP includes a goal to increase fluency skills by applying phonics and decoding knowledge so that the student can increase words read per minute. The student’s November 2020 progress report shows the student was making appropriate progress toward meeting the annual goal. At the January 20, 2021, annual IEP team meeting, the IEP team reviewed the student’s progress and determined the student exceeded the goal. The IEP team revised the goal to increase the student’s reading fluency on the more complex text and increased the amount of in-person instruction from 40 minutes of specially designed literacy instruction twice a week to 40 minutes daily. During the complaint investigation, the district explained that the student’s reading goal was increased from year to year and reflects the student’s progress in fluency, and although the goal’s measurement is specific to words read per minute, the student also made concomitant gains in reading comprehension. The student’s general education reading and social studies teacher shared that the student is working on grade level common core standards related to reading and comprehending a variety of complex literary and informational texts, which includes independently and proficiently understanding the grade-level text. The student uses the general curriculum materials and is performing slightly above or at the same level as peers, and the student is passing both classes.

The student’s IEP must be designed to enable the student to be involved in and make progress in the general education curriculum for the grade in which the student is enrolled so that the student can meet the educational standards that apply to all students. 34 CFR § 300.39(b)(3)(ii). The special education services in the student’s IEP must be designed to enable the student to advance appropriately toward attaining their annual IEP goals during the annual period covered by the IEP. In a situation where a student is performing significantly below the level of the grade in which the student is enrolled, an IEP team should determine annual goals that are ambitious but achievable. The annual goals need not result in the student’s reaching grade-level within the year covered by the IEP, but the goals should be sufficiently ambitious to help close the gap. Office of Special Education and Rehabilitative Services (2015, November 16), Dear Colleague Letter. The student’s IEP was developed to enable the student to attain their annual reading goal within the year covered by the IEP, and the goal was sufficiently ambitious to help close the gap in reading achievement, as evidenced by the increase in performance in the general education curriculum. The student is experiencing success in the general education reading curriculum for the grade in which the student is enrolled. The student’s math goal, however, was not sufficiently ambitious to help close the gap in math performance. The IEP carried over the same basic math goal from one year to the next, indicating that the student was failing to make meaningful progress toward meeting the goal.

In response to the complaint investigation, the IEP team met on November 11, 2021, reviewed and revised the student’s IEP to include additional math goals to address the student’s lack of progress. Reading goals were also added to further close the gap in achievement, including goals to increase reading comprehension. The district has now revised the IEP goals designed to enable the student to make progress appropriate in light of the student’s circumstances; however, the IEP team must reconvene to determine compensatory services needed to address the student’s lack of progress in math since September 27, 2020. The district must submit documentation of the IEP team meeting and determination to Anita Castro within thirty days of this complaint decision.

Whether the district properly implemented the student’s IEP.

The district must provide special education services as specified in the student’s IEP. 34 CFR § 300.320(a)(4). Each district must ensure that the student’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation, and they are informed of their specific responsibilities. 34 CFR § 300.323(d).

In September 2021, the student missed the first two weeks of school due to COVID-19 quarantine. During this time, the student’s parent picked up the student’s assignments from school. The student’s special education teacher called the parent and student twice a week and provided support in reading and math in accordance with the contingency plan in the student’s IEP.

Later that month, all of the students in the student’s grade were to attend a camping activity for one week as part of the regular education curriculum. The student’s parent opted for the student to attend the camp for two of the five days the camp was offered for reasons unrelated to the student’s disability. The district informed all parents that if they opted for their child not to attend any portion of the camping activity, the student would remain at home during that time. Since camp participation was the only instructional option provided to all students at that grade level, the district was not required to provide specially designed instruction to the student during the three days the parent opted for the student not to attend the camp.

Also, in September, the parent made a records request of the district and was concerned when the records did not include logs or other evidence of special education services provided to the student. The district explained that service logs are not part of a student’s educational record. Records maintained for personal use by a teacher are not pupil records if the records are not available to others; however, in this case, the service logs are shared with other district staff, so the district should have included the logs in the records request. Within 20 days from the date of this decision, the district must provide the parent with the service logs in response to the pupil record request and submit evidence they have done so to the department.

As part of the complaint investigation, the district submitted several samples of the special education teacher’s weekly service logs that document when services were provided to the student. The student received specially designed instruction in accordance with the frequency and amount specified in the student’s IEP. Although the parent continued to have concerns about the effectiveness of the services provided, the IEP was implemented as written.

Whether the district properly responded to the parent’s concerns and afforded the parent a meaningful opportunity to participate in the development of the IEP.

In developing each student’s IEP, the IEP team must consider the concerns of the parents for enhancing the education of their child. 34 CFR § 300.324(a)(ii).

An IEP team meeting was held on September 8, 2021. Prior to the meeting, the parent submitted a list of concerns to the district. Following the meeting, the parent sent an email thanking the team and summarizing its discussion. After receiving a draft copy of the student’s IEP, the parent sent an email dated September 21, 2021, to the district expressing concern that the student’s draft IEP did not include the entire letter that the parent sent to the district as documentation of the parent’s concerns. The district revised the final copy of the IEP in response to include that information.

Interviews with the parent and district staff confirm that the parent’s concerns were discussed during the September 8, 2021, IEP team meeting and that the team revised the student’s IEP to address the parent’s concerns. When the parent contacted the district to express concerns after receiving the draft IEP, the district responded to those concerns. The district properly responded to the parent’s concerns and afforded the parent a meaningful opportunity to participate in the development of the IEP.

Whether the district properly considered the results of an outside evaluation obtained by the student’s parents.

As part of an evaluation for special education, the IEP team must review existing evaluation data on the child, including evaluations and information provided by the parents of the child. 34 CFR § 300.305.

On August 17, 2021, the parent sent the district a copy of an outside student’s neuropsychological report obtained by the student’s parent and requested an IEP team meeting to discuss. The IEP team met on September 8 to review the report and determine the current services met the disability-related needs of the student. The district, however, told the parent that information from the report would be considered during the student’s upcoming three-year reevaluation. The district initiated the student’s reevaluation on October 6, 2021.

On November 17, 2021, the department received from the district a copy of the evaluation report that included documentation of consideration of the student’s neuropsychological report. Further documentation of the IEP team’s consideration of the neuropsychological report is included in the student’s IEP developed on November 11, 2021. The IEP team properly considered the results of an outside evaluation obtained by the student’s parent.

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