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IDEA Complaint Decision 21-061

On December 9, 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 December 9, 2020, properly developed and implemented the individualized education programs (IEPs) of three siblings with disabilities.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program that meets the student’s unique needs and by implementing the special education and related services in accordance with the student’s IEP. 34 CFR §§ 300.323(c)(2) & 300.324.

Between December 2020 and the present, the district developed multiple IEPs for the three siblings who are the subject of this complaint: four IEPs for Student #1 and five IEPs each for Students #2 and #3. The multiple IEPs were the result of contingency plans, annual IEP team meetings, and changes in placement. The department encouraged all school districts to review students’ IEPs and develop contingency plans in response to the COVID-19 pandemic. The district developed contingency plans for the three students and revised their IEPs accordingly. The district then provided the parents with a copy of each updated IEP as required. Wis. Stat. § 115.787(3)(e). Under state and federal statutes, the IEP team is required to review and revise a student’s IEP at least annually. Wis. Stat. § 115.787(4)(a)(1) & § 34 CFR § 300.324(b). The district conducted annual IEP team meetings for each student and provided copies of each student’s annual IEP to the parents. The district then held a second annual IEP meeting to address concerns and align the date of the annual meeting for all three siblings to accommodate the parents’ needs better. The district provided to the parents updated copies of each IEP documenting the new annual IEP meeting date from which the one-year timeline is calculated. Over the last year, the parents opted for their children to receive virtual schooling at various times. The district provided an updated copy of each student’s IEP with a notice of placement when there were changes in the students’ placements and associated revisions to services. Wis. Stat. § 11.787(3)(e).

The complainants expressed concern regarding the “amount of physical IEPs that [their] children received.” The complainants were concerned that the number of IEPs was the result of the district’s improper IEP development and failure to meet their children’s disability-related needs. Although there were numerous copies of IEPs for each student between December 2020 and the present, this was not an indication of improper IEP development or failure to meet the students’ disability-related needs, but rather a result of the district’s response to parent requests, revisions to better address student’s needs, and documentation required to demonstrate compliance with state and federal special education statutes. The district properly developed the IEPs of the three siblings.

On September 26, 2021, the parents opted to remove their students from in-person instruction in the district and begin an open enrollment process in a virtual charter school outside the district. Interviews with district staff and a review of service provider logs indicate that while the open enrollment process was pending, the district offered virtual speech and language therapy, specially designed instruction, and supplementary aids and services to the students beginning September 28, 2021. The students participated in virtual speech and language therapy except on October 7, 12, and 14, 2021. Students #2 and #3 did not access their specially designed instruction on October 7, 8, and 11-15, 2021. This was due in part to the parents’ concerns with a change in staffing. In each instance, the district made the services available for the students to access. When a student did not attend a session, the service provider offered to make up the session with the student. As the district did not receive a transfer of records request about the open enrollment process, in an October 11, 2021, email to the students’ parents, the district clarified their understanding that the parents wanted to open enroll the students in a virtual learning academy outside the district and that there may be a 20-day wait period until they were admitted. The district shared with the parents that their school board policy allows for a student to be excused by the parent for not more than 10 school days in the school year before a student is considered truant. #### (District) Board of Education Policy #5130. The parents were concerned this email contact was meant to intimidate the family; however, the district intended to inform the parents of the district’s school board policy, which is consistent with state compulsory school attendance requirements. Wis. Stat. §118.15(3). The district suggested the students complete work packets based on the general education curriculum and attend the district’s virtual charter school to avoid being considered truant while they awaited open enrollment approval in the charter school outside the district. The district began providing work packets for the students. The IEP team, including the parents, reconvened the IEP team for each student on October 13, 2021. The students resumed virtual specially designed instruction on October 18, 2021, and speech and language therapy on October 19, 2021. The students enrolled in the district’s charter school on October 26, 2021. The district made services available according to each student’s IEP and met their obligation to provide FAPE from September 26 through October 19, 2021.

During the complaint investigation, the parents expressed specific concerns that the district did not provide Students #2 and #3 academic check-ins each week beginning October 28, 2021, and did not provide Student #2 adaptive math instruction daily beginning November 11, 2021. Interviews with district staff clarified that adaptive math instruction was made available daily to the student to supplement the student’s regular education math program. The teacher and student share computer screens when working on the adaptive math instruction; however, the parents determined they wanted the student to devote more time to regular education math assignments and did not access the adaptive math instruction. The academic check-ins were provided by the speech and language therapist and special education teacher as part of their regular sessions with the students and parents. For instance, the speech and language teacher checked on the student’s progress with the regular education phonics instruction and provided additional assistance to the student with vowel chunks. As part of the weekly contact, the special education teacher asked the parents about the students’ progress in regular education, and on some occasions, the parents requested assistance with those subjects and, on other occasions, declined to share what the students were working on or how they were progressing.

On November 1, 2021, the students began participating in the district’s charter school using a “hands-on” curriculum that the parents selected. The IEP team met and reviewed and revised the IEPs to update placement and consider needed services. In discussion with the parents, it was agreed the students would begin with reading, writing, and math until the parents and students developed a comfort level with the new materials. A district staff member delivered the curricular materials for reading, writing, and math to the students’ home. On November 30, 2021, the district staff member delivered science and social studies curricular materials and additional math manipulatives and art supplies to the home. During the complaint investigation, the parents expressed concern that the students did not receive the science and social studies curricula or additional manipulatives until December 1, 2021, and that there was no support for parents with district’s charter school. District staff explained that district’s charter school is based on a personalized learning plan designed for each student, and it is not uncommon for students to start with basic subjects and expand the curriculum over time. District staff further explained the students’ parents had been made aware of the design of the district’s charter school plan and agreed to it. District staff also explained that teachers are available online and in person to support students and parents (see district’s charter school Student and Family Handbook, 2021-22 School Year). District staff provided the students and parents support with regular education instruction. Additionally, the district provided the students with their special education services as indicated in their IEPs. The district properly implemented the students’ IEPs.

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