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IDEA Complaint Decision 21-048

On November 10, 2021 (form dated November 8, 2021), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the #### (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, beginning November 10, 2020, properly developed the individualized education program (IEP) of a student with a disability based on the student’s unique needs.

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 that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324. The IEP team must determine the special education services needed to meet the student’s disability-related needs and allow the student to make progress in the general education curriculum. 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 student’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. 34 CFR §§ 300.320 and 300.323. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324(a)(2)(i).

The student who is the subject of this complaint is currently in ninth grade and has a history of absences due to school phobia. The IEP in effect at the beginning of the time period relevant to this complaint was developed on October 5, 2020. At that time, instruction in the district was exclusively virtual for the majority of students. The IEP applied to both in-person and virtual settings. Special Education services included a five-minute daily check-in for identification of feelings and specially designed instruction in self-regulation for 30 minutes per week. The IEP also provides the student a 10-minute sensory break when the student is attending school in-person, exhibiting anxiety, and unable to self-regulate within five minutes. All academic classes were in the general curriculum, and the student’s virtual participation was minimal. The IEP contained one annual goal that the student “will increase her ability to recognize her need to self-regulate,” and did not define a measurable baseline level of performance and a measurable level of expected attainment and lacked a measurable way to determine progress.

On February 22, 2021, the case manager and parents agreed to change the IEP without holding an IEP team meeting. Self-regulation instruction and academic support were increased to “30-150 minutes/week” in all school settings, virtual or in-person. The student’s participation continued to be minimal following this change.

The student’s IEP team met on April 26, 2021, to review and revise the student’s IEP. The IEP team increased the student’s specially designed instruction to “120-240 minutes/week” in-person but removed the virtual contingency. A note within frequency/amount stated that “the team agrees that [the student] will attend in-person two hours per week.”

The district did not properly develop the student’s IEP to address the student’s unique needs. Describing the student’s specially designed instruction as a range in February 22, 2021, and April 26, 2021, revisions of the IEP were not appropriate. The intention of including this range of time was to provide flexibility so the student could spend more time in the school building if everything were going well. However, the description of amount and frequency does not explain when the student will be provided what amount of specially designed instruction within that range. Generally, it is not appropriate for IEPs to describe services using a range of times because such a description does not communicate a clear commitment of district resources. See Department Special Education Information Update Bulletin 10.07. The IEP team has since revised the IEP to provide clear descriptions of the specially designed instruction.

In addition, the IEPs annual goal lacked measurable baseline levels of performance and measurable expected levels of attainment for each skill and lacked a defined way to measure progress towards each skill. The revisions to the IEP since the filing of the complaint have not addressed these issues.

The IEP team must meet within 20 days of this decision to a) develop annual IEP goals so that each skill included has a measurable baseline, a corresponding measurable level of expected attainment, and a corresponding way to measure progress, and b) determine the appropriate amount of compensatory services required to address the improper development of the student’s IEPs. Within 10 days of the IEP team meeting, the district must provide to the department a copy of the student’s revised IEP addressing both directives.

Within 30 days, the district shall develop a corrective action plan, including training, to ensure that all district IEP goals are written with measurable baseline levels of performance and corresponding measurable levels of expected attainment so that progress can be consistently measured.

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