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IDEA Complaint Decision 21-040

On September 30, 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 are whether the district, beginning September 30, 2020, properly developed the individualized education program (IEP) and educational placement of a student with a disability.

Whether the district properly determined the educational placement of a student with a disability.

To the maximum extent appropriate, students with disabilities are educated with children who are non-disabled. Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2).

The student who is the subject of this complaint has a serious medical condition that suppresses their immune system, putting them at considerable risk of COVID-19 should they become infected. Due to these factors, the IEP team chose to have the student begin the 2020-21 school year in a homebound placement. The student completed some work virtually but also had teachers come to their home to provide instruction. Interviews indicate that this system worked well for the student and that they made progress in the general curriculum and towards their IEP goals.

A contingency plan was already in place at the beginning of the 2020-21 school year to account for the unique needs of the student and the challenges of the COVID-19 pandemic. The contingency plan outlined the services the student would receive at home if either the school building was closed or the parent enrolled the student in the virtual learning environment. The contingency plan would remain in effect until the student could return to face-to-face instruction. Interviews indicate that this was done so the parent and the student's medical team could make decisions regarding the student's safety as COVID-19 conditions changed throughout the year.

The student's homebound placement continued until April 2021. A virtual meeting was held on April 8, 2021, where the student's parent indicated that they and the student's medical team felt it was safe for the student to return to school. The student returned to school full-time on April 21, 2021. The student finished the 2020-21 school year in person.

Since September 30, 2020, the district followed the parameters outlined by the agreed upon contingency plan, and the student is now attending school full-time, in person. The district properly determined the placement of a student with a disability.

Whether the district properly developed the 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 non-disabled 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, 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).

District policies may not result in the exclusion or prevention of a student with a disability from being educated in the regular education classroom with their non-disabled peers with supplementary aids and services if that placement would be appropriate for the student. Policies that prevent or improperly limit an IEP team from making individualized decisions under IDEA or prohibit the provision of necessary supplementary aids and services would not conform to the purposes of IDEA. 34 CFR § 300.115. See also Question C-10 from The United States Department of Education (USED), Office of Special Education and Rehabilitative Service (OSERS) Return to School Roadmap (September 30, 2021).

A district-wide mask mandate was in place when the student returned to school on April 21, 2021. The mask mandate was a critical part of the parent's decision to have the student return to school given their medical condition. On May 19, 2021, the school board met and decided to lift the district-wide mask mandate.

The parent emailed several district staff members outlining her concerns on May 19, 2021, August 27, 2021, and September 5, 2021, and the school board on September 17, 2021. The parent highlighted the student's health and safety needs as well as possible exclusion from the regular education environment. She also requested that "reasonable accommodations (wearing masks)" be implemented in order for the student to receive a FAPE. The IEP team did not meet to discuss COVID-19 prevention strategies for the student based upon the student's individualized disability-related needs despite these requests.

After this complaint was filed, the district contacted the parent on October 18 and 20, 2021, offering to convene an IEP meeting to discuss the student's health condition and possible COVID-19 prevention strategies. The parent declined the offer pending the outcome of mediation with the Wisconsin Special Education Mediation System and IDEA State Complaint.

The district failed to properly develop the IEP of a student with a disability when it did not convene the IEP team to discuss COVID-19 prevention strategies at the parent's request. IEP teams must consider whether an individual student, based on their unique disability-related needs, requires COVID-19 prevention measures, including the wearing of masks, in order to ensure that the student is able to receive FAPE in the least restrictive environment. Within 10 days of the date of this decision, the district must hold an IEP team meeting to discuss whether and to what extent additional COVID-19 prevention strategies must be put in place to ensure that the student can receive a FAPE in the least restrictive environment. district must send documentation of this determination to the department within 15 days of the IEP team meeting.

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