On November 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 issues are whether the district, during the 2020-21 school year, properly implemented the individualized education program (IEP) of a student with a disability and properly responded to a parent’s request for a special education evaluation.
Did the district properly implement the individualized education program (IEP) of a student with a disability.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the IEP, and implementing the program articulated in the IEP. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services, which must be included in the IEP. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7). Changes to the IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting, or upon agreement of the parent and the district, the district may develop a written document (IEP Form I-10) to amend or modify the child’s current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4).
The student who is the subject of this complaint is in middle school and has a health condition resulting in weakened bones and an ongoing risk of malnourishment. The student also has autism and does not communicate through verbal speech but uses a communication device called a Tobii Dynavox. The student does not have an understanding of the feeling of pain, and as such, is not always immediately aware of injuries and does not always express that something is wrong. The student is identified as a student with a disability under the areas of Other Health Impairment (OHI) and Speech or Language Impairment (SLI).
The student’s IEP in effect provides, as a supplementary aid and service, adult support to prompt eating and to “supervise during recess/outdoor time, transitions from class to class to support safety.” The IEP specifies that adult support was to be provided across all school settings. The student’s IEP also indicates the student has communication needs that impede the student’s learning and that the student requires their communication device consistently throughout the day and across all school settings.
The complainant asserts that the district is not properly monitoring and documenting the student’s food intake as the student’s snack bag was coming home full. District staff explained the snack bag was always with the student, and the teacher checks in with the student twice per day to see if the student is hungry and prompt the student to eat. District staff noted they did not record what the student ate from the snack bag, but this is not required by the IEP. The student’s IEP was properly implemented regarding prompting the student to eat.
On October 28, 2021, the student, seven classmates, and five district staff members took a field trip to a pumpkin farm. The student’s speech and language pathologist (SLP) was responsible for ensuring the student had the communication device on the bus. When the group arrived at the farm, the teacher noted it was raining outside and believed the rain could damage the device. The teacher noted that from the student’s behavior, it was clear the student did not want to carry the device, so it stayed in the student’s backpack on the bus for the duration of the field trip.
At one point during the field trip, the student ran out ahead of the others. The paraprofessional who was assigned to help the student was five to ten steps behind the student. A paraprofessional who was assigned to help another child told the student to be careful as she was running, and it was wet outside and saw the student slip and fall on their arm. Based on the student’s behavior, the paraprofessional did not think the student was injured. The paraprofessional said the student continued to play after the incident.
The complainant said the student informed the complainant about the fall when the student came home from the field trip later that day. The student further told the complainant the student did not have the Dynavox during the field trip. The student said their arm hurt due to the fall, and the next day a physician confirmed the student had a fracture in their right arm. The complainant reached out to the middle school to find out what happened. The staff completed an incident report dated November 3, 2021, after the complainant told the district about the student’s fractured arm.
Although the paraprofessional was unable to prevent the accident when the student ran out ahead during the field trip, the IEP team met the IEP requirements in providing the adult support. The district failed to implement the IEP on one occasion when the staff allowed the student to leave the communication device on the bus. No corrective action is required.
Did the district properly respond to a parent’s request for a special education evaluation.
School districts must ensure that a re-evaluation of each student with a disability occurs at least once every three years unless the parent and the district agree that a re-evaluation is not necessary. In addition, the district must ensure a re-evaluation is conducted if the student’s educational or related services needs warrant a re-evaluation or if the student’s parent or teacher requests a re-evaluation. Districts are not obligated to conduct re-evaluations more than once per year unless the parent and the district agree otherwise. 34 CFR § 300.303.
During the spring of 2021, the student’s IEP team conducted a re-evaluation based on new information provided by outside medical professionals. The student’s IEP team met to conduct the re-evaluation on May 25, 2021. The IEP team determined the student continued to qualify under the disability categories of OHI and SLP. The student’s parents called district staff the next day to request a re-evaluation to consider the impairment area of intellectual disability (ID).
On June 9, 2021, the IEP team met to review and revise the student’s IEP based on information gathered from the re-evaluation. The placement notice included the following statement: “Parent indicated they would like to implement the new IEP in the fall of 2021, with the understanding that if [the student] is struggling to make progress, or [the student’s] needs are not being met, they would want to request a new evaluation at that time.”
The district properly responded to the parent’s request for a special education evaluation. The parents requested a re-evaluation immediately after the district conducted the May 2021 evaluation. The district discussed this request at the IEP team meeting on June 9, 2021. The district was not required to conduct more than one re-evaluation per year unless the district and the parents agreed to do so. Given it had just completed the re-evaluation, it was not required to conduct another one within the same year. As was described in the June 30, 2021, placement notice, the parents requested, and the district conducted an additional re-evaluation in December 2021.
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.