On February 23, 2022 (form dated January 26, 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 issues are whether the district, during the 2021-22 school year, properly implemented the student’s individualized education program (IEP) regarding providing support during transitions and providing specially designed instruction in math, properly documented IEP team decisions in the student’s IEP, pre-determined the student’s placement, and properly developed the student’s placement in the least restrictive environment.
Whether the district, during the 2021-22 school year, properly implemented the student’s IEP regarding providing support during transitions and providing specially designed instruction in math.
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, documenting that program in the student’s IEP, and implementing the special education and related services in accordance with the student’s IEP. 34 CFR §§ 300.323(c)(2) & 300.324; Wis. Stat. § 115.787.
The student’s IEP developed on January 13, 2022, indicates that the complainant “was pleased that class to class escorts have been implemented at this time.” Under “Current Academic Achievement and Functional Performance,” the IEP states, “…One-on-one escorts for … [the student] were started the week of 1/4/2022 in order to increase attendance and minimize single class period absences throughout the school-day.” The IEP does not include the provision of support during transitions between classes as a supplementary aid or service to be provided for the student. The district’s Director of Special Education indicated that the district instituted the support in early January 2022 after the complainant contacted the director between IEP team meetings with concerns about the student being late to class or getting in trouble between classes. The director shared that this support was not included as a supplementary aid or service in the student’s January 2022 IEP because the IEP team ultimately determined to change the student’s placement to an offsite alternative school offering a smaller environment with fewer students making the support unnecessary. As the IEP team never added the service to the student’s IEP, the district did not improperly implement the student’s IEP regarding providing support during transitions.
The IEPs do not specifically include separate specially designed instruction in math; however, the IEPs provide the student support and instruction in “core academics.” There is no evidence the specially designed instruction described in the IEPs was not provided when the student was in attendance, although the student was provided choices about what areas to work on, and the student rarely opted to work on math. The district did not improperly implement the student’s IEP as written regarding math instruction.
Whether the district, during the 2021-22 school year, properly documented IEP team decisions in the student’s IEP.
IEP teams, including the student’s parents, must work toward a consensus regarding the contents of each student’s IEP. This must include a meaningful consideration of parents’ requests related to IEP development and placement decisions. However, the district is ultimately responsible for ensuring such decisions are made in conformity with state and federal special education law requirements and that the student receives a FAPE. Districts should clearly document parent concerns in the IEP and should document options related to the student’s placement and services the IEP team considered and the reasons they were rejected. 34 CFR § 300.324(a)(1).
The complainant asserts several options were discussed during the various IEP team meetings to help the student succeed in school, including support from school staff to help the student participate in sports and find a job. The complainant is concerned these discussions and decisions are not documented in the student’s IEPs. District staff recall IEP team conversations about the student’s potential participation in sports and finding a job, but district staff do not recall making a decision that specific supports or services were required. District staff also contend that some of these conversations referenced by the complainant occurred outside of IEP team meetings. The student’s IEPs do not include documentation of these discussions or the reasons why supports or services were determined not to be necessary. After IEP team meetings, district staff and the complainant did not have a shared understanding of the services to be provided to the student. The district did not properly document IEP team decisions in the student’s IEP.
Whether the district, during the 2021-22 school year, pre-determined the student’s placement and properly developed the student’s placement in the least restrictive environment.
In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. Each student’s placement determination must be based on the student’s individual needs as specified in the IEP; be determined at least annually; be as close as possible to the student’s home; and, unless the student requires some other arrangement, in the school the student would attend if not disabled. Students with disabilities should not be removed from education in an age-appropriate regular education classroom solely because of needed modifications in the general education curriculum. Removal from the regular education environment should only occur if the nature or severity of a student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The IEP team must document its placement decision, including its consideration of LRE, in the IEP. Wis. Stat. § 115.79; 34 CFR § 300.114; 34 CFR § 300.116.
A school district may not predetermine matters that are the responsibility of the student’s IEP team. However, a school district may develop proposals for the IEP team to consider as long as the proposal is used solely for discussion purposes and is not represented as a final decision.
The complainant asserts that prior to the January 13, 2022, IEP team meeting, the school district predetermined that the student would be placed at an alternative school and that the complainant’s concerns regarding this external, more restrictive placement were not appropriately considered at the IEP team meeting or documented in the IEP. The alternative school provides a smaller, more structured self-contained environment. In the section of the January 13, 2022, IEP describing the student’s present levels of functional performance, the IEP indicates that placement in the alternative school was discussed “in order to ensure more progress towards academic and behavior goals is met throughout the 2nd semester.” It continues that the student “has not made sufficient academic progress and requires a more structured and smaller group environment in order to meet” the IEP goals. It further indicates that when the IEP team is satisfied that the student is making progress toward meeting the student’s IEP goals, the IEP team will consider a partial transition back to the placement in the district school and provides for the IEP team to reconvene in March 2022. During the investigation of this complaint, the district cited the student’s previous successful progress at the alternative school as justification for the student’s placement in the alternative school. While district staff felt the placement at the alternative school would enable the student to be more successful in earning academic credits, the district considered less restrictive options, such as continued placement at the district high school, but did not document why those options were considered and rejected. The district did not predetermine the student’s placement but did not properly develop the student’s placement when it failed to document discussion of less restrictive options considered and the reasons they were rejected in the student’s IEP.
The student’s IEP team reconvened on March 16, 2022. The resulting IEP provides information regarding the placement decision and the reasons options for placement and services were considered and rejected. As such, no additional student-specific corrective action is required. Within 30 days of the date of this decision, the district shall submit to the department for approval a corrective action plan outlining the steps it will take to ensure IEP teams properly document conversations and decisions about services and supports to be provided for each student and properly document discussions regarding a student’s change of placement to more restrictive settings in IEPs, including less restrictive options considered and reasons they were rejected. The plan must include how the district will monitor this in future IEPs.
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.