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IDEA Complaint Decision 22-016

On March 1, 2022 (form dated March 1, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). The department must investigate and issue a decision on such complaints within 60 days. This is the department’s decision regarding this complaint. The issues identified are whether the district, during the 2021-22 school year, properly determined the student’s placement in the least restrictive environment, improperly shortened the student’s day, properly developed an individualized education program (IEP), reasonably calculated to enable the student to receive a free appropriate public education, and properly implemented the student’s IEP regarding the provision of nursing services.

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. The school district must properly document the program in the student’s IEP and implement the program as articulated in the IEP. The IEP must be reasonably calculated to enable the student to make appropriate progress. 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 child’s circumstances. At the beginning of each school year, each district must have an IEP in effect for each student with a disability, and special education and related services must be provided to the student in accordance with the student’s IEP. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. Special education is specially designed instruction to meet the unique needs of a student with a disability. It is provided by appropriately licensed staff at no cost to the student or the student’s parent. Special education may be provided in a wide variety of settings, including the classroom, the home, hospitals, and other institutions. 34 C.F.R § 300.39: Wis. Stat. § 115.76 (15). In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. To the maximum extent appropriate, students must be educated with students who are nondisabled. 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 - 300.116. While the IEP team (which includes the student’s parents) must work toward reaching consensus, including the team’s meaningful consideration of parents’ requests related to IEP development and placement decisions, the district is ultimately responsible for ensuring the student receives a FAPE. Wis. Stat. § 115.79; 34 CFR § 300.116.

The student who is the subject of this complaint has complex health needs and requires specially designed instruction in all academic areas, including specialized instruction in the expanded core curriculum for students with visual impairments. The student needs assistance with positioning, mobility, personal care, and eating. The student’s IEP includes related services of occupational therapy, physical therapy, school nursing services, and transportation to benefit from special education. The student requires full-time one-to-one nursing care throughout the school day, both in the school environment and on the school bus.

For many years, the student has attended programming through a local private agency that provides support to individuals with significant health care needs across the lifespan. Many of the services the agency has provided have been funded through various public means. The private agency operates a private school as part of its service offerings to school-age children who utilize the supports and services of the agency. The student, who resides in the MPS attendance area, was one of several students enrolled in the private school through the Special Needs Scholarship Program (SNSP). The SNSP is a program created under state law that allows parents of students with IEPs to access public funding to allow their child to attend a participating private school of their choice. In preparation for the 2021-22 school year, the private school made the determination to cease participation in the SNSP in favor of entering into contracts with school districts. The private school informed parents whose children participated in the SNSP that they would have to enroll their children in their resident school districts. MPS has not had a prior contractual relationship with the private agency or the private school.

During the spring semester of 2021, MPS conducted a reevaluation of the student, and the student’s IEP team convened to develop the student’s IEP on April 30, 2021. The IEP team developed an IEP reasonably calculated to allow the student to make appropriately ambitious progress given the student’s needs. The IEP team determined the student would be placed at a district school attended by several other students with significant health care needs and attended by many students without disabilities. Attendance at this school would allow the student to be educated with peers who do not have disabilities according to LRE provisions. The district determined the school would be well-equipped to serve the student.

Given challenges from the ongoing COVID-19 pandemic and the district’s return to in-person school for the majority of students, the district was not able to hire a sufficient amount of private duty nursing staff to meet the needs of all students requiring one-to-one nursing services during the 2021-22 school year. The district continues to work diligently with several agencies to fill these positions, but there is an ongoing shortage of qualified candidates. MPS informed the student’s parent the student would not have a nurse available at the beginning of the school year, and as such, the student did not begin attending the district school. The private agency continued to provide the student with a placement at their private school. The student’s placement at the agency for day services is funded through other public sources, and the agency has continued to permit the student to attend the private school’s programming, although the student remains enrolled in MPS.

The student’s IEP team reconvened on November 19, 2021. The student’s parent attended the IEP team meeting and included staff from the private agency and school. At that meeting, the team discussed the district’s ongoing efforts to hire a private duty nurse and considered alternative ways to implement the student’s IEP pending hiring a nurse to serve the student. The team discussed the student participating in virtual programming from the student’s home but determined virtual programming would not be meaningful given the student’s needs. The team also discussed the district providing the student a limited amount of in-person services in the student’s home through the district’s Home and Hospital program, but that option was rejected as the program could not provide sufficient services to meet the student’s needs. The IEP team discussed that the reason the student was not attending school was due to the lack of a one-to-one nurse. The representatives from the private agency offered the district the option of entering into a contract so that the student would continue to attend the private school at district expense, but district staff were not prepared to discuss that option at that IEP team meeting.

On December 15, 2021, the student’s IEP team reconvened. The district communicated its ongoing unsuccessful efforts to hire a one-to-one nurse for the student. The student’s parent expressed satisfaction with the student’s participation at the private agency. The private agency and school continued to offer a contract-based placement, but the district was unwilling to consider such an arrangement. The district determined that until the district could hire a nurse to allow the student to attend school in person, the district would provide in-person homebound instruction through the district’s Home and Hospital services program. The parent did not wish for the Home and Hospital services to be provided. At the time of this complaint decision, the student continues to access day programming at public expense through the private agency and attends educational programming through the private school.

The parent’s complaint alleges that the district’s proposed IEP would not provide the student a FAPE in the LRE, and the amount of Home and Hospital services offered amounts to an impermissible shortening of the student’s day. The complaint further alleges the district’s refusal to consider entering into a contract with the private school denies the student FAPE.

The department finds the IEP developed by the district calling for in-person, full-day placement in the district school is properly designed to provide the student FAPE in the LRE where the student will have access to peers who do not have disabilities. The district acknowledges it has unfortunately not been able to provide the necessary staff to properly implement the student’s IEP. Further, the district is aware its offer of limited in-person, home-based services would be a stopgap measure that alone would not provide the student a FAPE nor represent a placement in the student’s LRE. The department recognizes the district is making conscientious efforts to fill the position and that finding candidates for such a position is uniquely challenging and difficult during the COVID-19 pandemic. However, during the IEP team meetings for the student in November and December 2021, the parent and the private agency offered an option for the student’s placement. The department finds the IEP team did not properly meaningfully consider the option of placing the student at the private school at public expense as a way of ensuring the student receives a FAPE in the LRE. Within 15 days of this decision, the district is directed to reconvene the student’s IEP team to consider the private school as a placement option until the district can hire a nurse to implement the student’s IEP at the district school. The district should document their decision about the appropriateness of placing the student at the private school and submit such documentation within five days from the date of the IEP team meeting. The district must also provide updates to the department on its efforts to hire a one-to-one nurse.

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 or contact the special education team at (608) 266-1781.