On February 16, 2022, 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 issue is whether the district, during the 2021-22 school year, properly implemented 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 student’s IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324. The IEP must include clear descriptions of the amount, frequency, location, and duration of services, so the school district’s commitment to resources is clear to the parent and all involved in developing and implementing the IEP. 34 CFR § 300.323.
The student who is the subject of this complaint has multiple disabilities and uses a gait trainer and stander daily. The complainant raised concerns the student was not wearing the proper shoes and braces for the proper amount of time while using this equipment during the school day. The IEP in effect during the 2021-22 school year specifies the student will use a gait trainer and stander “at least 1 time per day, at least 30 minutes each. Number of hours per day – 1.” Additionally, the IEP indicates the physical therapist will train staff on the use of the gait trainer and stander at the beginning of the school year, and whenever new staff or equipment is introduced, will provide training until competency is demonstrated, and will review the use of equipment with staff quarterly. The IEP also provides that the physical therapist will provide direct therapy to the student and address equipment fitting, and assess walking with the gait trainer for 25 minutes twice weekly. The IEP calls for staff to complete a daily school-home communication journal/sheet with details of the student’s activities, including time spent walking and standing. Under the description of the student’s present level of functional performance, the IEP explains, “[the student] wears bilateral ankle foot orthosis (AFOs) during the school day with good tolerance,” wears shoes with a lift to address a leg length difference when in the stander and wears non-corrective street shoes while using the gait trainer.
On September 17, 2021, after reviewing the student’s IEP and meeting with the student’s previous physical therapist, the physical therapist for the 2021-22 school year trained the student’s special education case manager and on September 23, 2021, trained the special education assistants (SEAs) on the use of the gait trainer and stander. This training is documented in the physical therapist’s personal notes and was confirmed by other district staff. The physical therapist’s notes include documentation of the therapist observing staff, working directly with the student using the equipment, and providing suggestions to staff on a regular basis. The physical therapist also planned to review training with staff in February 2022 after observing inconsistencies in performance and because new staff members would be coming on board.
During the complaint investigation, district staff clarified the student was to use each piece of equipment at least 30 minutes per day and up to one hour per day, in accordance with the student’s IEP. District staff acknowledged the student was not in the stander at least 30 minutes each day as specified in the IEP for several reasons, including the student protesting using the stander, scheduling conflicts, and the equipment not being available because it needed adjustment. Although the gait trainer was used more frequently (e.g., four times a week), the student also did not use the gait trainer for at least 30 minutes each day. At other times the student used the equipment for more than an hour, as documented in the school-home communication journal. For instance, on September 17, 2021, the student used the gait trainer for 75 minutes in the morning and the stander for 90 minutes in the afternoon, and on October 8, 2021, the student was in the stander for 2 hours in the morning. In addition, although the IEP includes the statement “[the student] wears bilateral ankle foot orthosis (AFOs) during the school day with good tolerance,” the IEP does not specify the circumstances under which the AFOs are to be worn when using the gait trainer and the stander. This lack of clarity led to staff confusion and, as a result, inconsistent use of the AFOs with the student.
The district did not properly implement the student’s IEP regarding the student’s use of the gait trainer and stander during the 2021-22 school year. Within 20 days of the date of this decision, the IEP must be revised to clarify under Supplementary Aids and Services the circumstances when the student must wear the AFOs and which shoes are to be worn when using the gait trainer and stander. The district is directed to send a copy of the revised IEP to the department within 10 days of its revision. The district must also develop a corrective action plan to ensure these services are implemented as specified in the student’s IEP.
The IEP in effect during the 2021-22 school year also specifies that staff are to provide the student prompts and occasional direct assistance to ensure the student drinks no less than 30 ounces of water spread throughout the school day and that staff are to include details regarding the student’s water intake and toileting in the daily school-home communication journal. Multiple staff members worked with the student throughout the day and did not consistently record the student’s water intake or toileting in the student’s daily school-home communication journal. Because the communication journal does not include sufficient detail and there is no other log kept by staff, it is not possible to determine if the student drinks sufficient water throughout the day. In the district’s corrective action plan, the district must develop a method for tracking and communicating with the student’s parent the student’s water intake and toileting, so multiple staff ensures the student drinks sufficient water throughout the day.
The IEP in effect during the 2021-22 school year includes transportation for the student from home to school and back every school day. The student’s parent expressed concerns about inconsistencies in the student’s transportation. Each week, the student participates in swimming in another district building and attends a community center during the school day. During the complaint investigation, the district explained that the student, with the assistance of a SEA, either took the city bus or publicly provided paratransit to and from these facilities. However, the IEP does not include documentation regarding transportation to these facilities.
The district explained that the IEP team did not discuss the need for transportation to swimming and the community center because the student was learning how to use public transportation as part of their transition program, although this is not documented in the student’s post-secondary transition plan. Paratransit is a publicly funded service provided at no cost to individuals who need door-to-door transportation managed by the city bus company. As such, the district did not believe its use needed to be documented in students’ IEPs as a related service. According to special education regulations, transportation required to assist a student with a disability to benefit from special education is a related service. 34 CFR § 300.34(c)(16). A student’s IEP team is responsible for determining whether transportation between school and other locations is necessary for the student to receive FAPE. 34 CFR § 300 & 301; Analysis of Comments and Changes, 71 Fed. Reg. 46576 (August 4, 2006). The IEP team must reconvene to determine whether this transportation remains necessary for the student to receive FAPE and whether it should be included in the post-secondary transition plan as a transition service and, if so, document it as a related service in the student’s IEP, and as a transition service in the post-secondary transition plan.
Within thirty days of this complaint decision, the district must submit the revised IEP and corrective action plan to the attention of #### at the department.
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.