On March 29, 2022 (form dated February 14, 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 identified are whether the district, during the 2021-22 school year, properly developed the individualized education program (IEP) to allow the student to participate with nondisabled students in nonacademic and extracurricular activities to the maximum extent appropriate and properly determined the student's educational placement in the least restrictive environment.
In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student's IEP team must determine the least restrictive environment for the student and document placement options considered and rejected and the reasons they were rejected. 34 CFR § 300.114.
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and other services and activities, each public agency must ensure that each child with a disability participates with nondisabled children in these services and activities to the maximum extent appropriate to the needs of that child. Each student's IEP team must determine whether the student needs supplementary aids and services in order to participate. Supplementary aids and services must be described in a manner that makes the district's commitment of resources clear to the student's parent and all involved in developing and implementing the IEP. The amount, frequency, location, and duration description must be appropriate to the specific service. 34 CFR § 300.117.
The IEPs in effect for the student during the 2021-22 school year state the student will participate in an alternate curriculum that is aligned with alternate achievement standards/Common Core Essential Elements in reading, math, writing, adaptive physical education, social skills, self-regulation, and attending, and will receive specially designed instruction 270 minutes a day with specialized transportation as a related service. Because the student is in a comprehensive special education unit, all academic and special classes, including lunch and recess, are provided within a self-contained special education environment. The student's classroom is comprised of students ranging from fourth grade through eighth grade and is located on the lower level of the school, which also includes other special education classrooms, kindergarten, third grade, fourth grade, music, and the cafeteria. The IEPs, in effect throughout the school year, document the parent's concern and desire for the student to attend music class with same-age nondisabled peers. The IEP states the student receives music in the comprehensive special education classroom. Due to COVID-19 restrictions, all classrooms eat lunch in their respective classrooms. Interviews with district staff state the student attends recess with their classmates from the self-contained special education classroom and nondisabled students. However, the students who are not disabled are not peers of the same age.
On December 8, 2021, the parent contacted the school with concerns regarding the upcoming holiday concert. The parent indicated the student had never had an opportunity to participate with his nondisabled peers in the holiday program, which before COVID-19 restrictions took place in the school auditorium. Due to the COVID-19 pandemic, each classroom was individually videotaped performing the holiday selections, and the completed school video was shared virtually with families. The student's special education class performed their portion of the holiday program in the music room, which was a sensory-friendly environment. The IEP team did not discuss options for the student to participate in music with his same age nondisabled peers.
IEP teams must focus on the accommodations and adjustments necessary to enable children with disabilities to participate in the general curriculum to the maximum extent appropriate and make individual determinations on how a student may participate in the general education curriculum with same aged nondisabled peers. Further, before an IEP team determines that special education and related services should be provided outside of the regular education classroom, the full range of supplementary aids and services that could be provided to facilitate the student's success in the regular education classroom must be considered. Department Special Education Information Update Bulletin 00-04. District staff and parent interviews indicate the IEP team did not properly discuss or document the extent to which the student would participate in specials classes, including lunch and recess, or other extracurricular activities for the 2021-22 school year and did not discuss whether the student may participate in the activities with same aged nondisabled peers with the use of supplementary aids and services. Due to the student's impairment area and participation in the alternative curriculum, the student receives all instruction, including special classes, in the special education classroom for the entire day and does not have access to same aged nondisabled peers. The IEP team did not make an individual determination regarding the student's educational placement nor document placement options considered and rejected and the reasons they were rejected. As a result, the IEP team did not properly determine the student's educational placement in the least restrictive environment. The department's investigation confirmed similar arrangements are replicated in several schools across the district.
Within 60 days of the date of this decision, the LEA must conduct an IEP team meeting for the student who is the subject of this complaint that documents a discussion on the student's participation in regular education classes, including specials classes and extracurricular activities with same age nondisabled peers and properly determine placement in the least restrictive environment. The LEA must submit to the department a copy of the student's IEP documenting the required discussion within 10 days from the date of the student's IEP team meeting.
Within 30 days of the date of this decision, the LEA must submit a proposed corrective action plan (CAP) to the department that ensures IEP teams individually discuss each student's participation in regular education classes, including participation in specials classes and extracurricular activities and properly consider the student's educational placement in the least restrictive environment with the use of supplementary aids and services, focusing specifically on all students determined to have disability-related needs resulting in participation in the alternative curriculum who have been traditionally placed in the comprehensive special education units.
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.