On April 25, 2022, (form dated April 20, 2022) the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). The issue identified is whether the district, during the 2021-22 school year, properly developed the individualized education program (IEP) of a student with a disability to address behavior and communication needs.
School districts must provide each student with a disability a free, appropriate, public education (FAPE) in the least restrictive environment (LRE). School districts provide FAPE to each student with a disability, in part, 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. 34 CFR § 300.324.
IEP teams are required to consider several factors when developing each student’s IEP. These factors include consideration of whether a student’s behavior impedes the student’s learning or that of others, and if so, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. Each IEP team is required to consider the communication needs of the student. Additionally, each IEP team must consider whether the student needs assistive technology devices and services. 34 CFR § 300.324(a)(2). The IEP team must describe each service in the IEP in a manner appropriate to the service, including a clear statement of the amount, frequency, location, and duration the service is to be provided. The district’s commitment of resources to the student must be clear. Services must be
described in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR § 300.320(a)(7).
The student who is the subject of this complaint has disability-related needs in the areas of communication and behavior. The student’s communication delays have a direct impact on their behavior, their ability to convey wants and needs and follow directions. For instance, to express their thoughts, the student will sometimes throw toys, push away the adult working with the student, or push classmates to the ground. The IEP in effect at the beginning of the 2021-22 school year included communication and behavior goals. The goals for the student specified that the student will use pointing, gestures, pictures, signs and words or word approximations to communicate; and the student will increase appropriate behavior responses such as tapping a peer on the shoulder rather than pushing them to the ground to communicate the desire to play. The IEP also included specially designed instruction in communication and behavior; speech and language therapy; visuals to support communication (photos, pictures, objects); adult support for on-task behaviors; and sensory strategies for self-regulation.
On February 14, 2022, the student’s IEP team met to develop the student’s annual IEP. The IEP team noted the student continued to have disability-related needs in communication and behavior. Documentation in the annual review of goals indicates the student met their behavior goal, and new behavior goals and services were added to the IEP. The student’s parent expressed concern about the student’s communication skills and inability to communicate what they want or when something is wrong. The IEP team documented these concerns. In response to the parent’s concern regarding the student’s communication, the IEP team added an annual goal for the student to respond to questions and communicate preferences using a “total communication approach” consisting of American Sign Language, AAC devices, verbalizations and gestures.
To address the student’s communication needs, the IEP indicates the district is trying a variety of augmentative and alternative communication (AAC) devices with the student. During the complaint investigation, district staff explained they have explored using various communication strategies and speech generating devices with the student, including a low-tech paper board with pictures and a mid-tech device with tactile and audio feedback. The student had previously tried a high-tech device, but the student found it overwhelming. Staff explained they modeled how to use the low-tech device with the student, but the student had difficulty paying attention to the paper board. Staff then introduced the mid-tech device with tactile and audio feedback and found the student was better engaged with that device. In April 2022, the parent requested the district again provide a high-tech speech generating device for the student to use. The district met with the parent, reviewed several options and provided a high-tech speech generating device for the student to try at school and home. The district is in the process of assessing the effectiveness of this device.
During the complaint investigation, the parent expressed frustration that it took too long for the district to provide a high-tech device for the student to use. The district had been trying various communication strategies and AAC devices during the year to identify the most appropriate device to meet the student’s needs. Using various devices on a trial basis is permissible. Unless a student’s IEP names a specific type of device, districts have flexibility in selecting the type of device so long as it provides the student a free appropriate public education. As evidenced by documentation in the annual review of goals conducted at the February 14, 2022, IEP team meeting, the student met their communication and behavior goals. The student was able to express “more” than 60% of the time, no longer pushed other students down, and followed directions with few prompts. Although the parent wanted a specific type of speech generating device used with the student, the district was not required to select the parent’s preferred device.
The student’s IEP team properly considered and determined that the student needs assistive technology as part of the special factors consideration during IEP development; however, they neglected to include proper documentation of any necessary AT devices and services, including the services of the district’s AT specialist, in the program summary. The IEP includes neither a clear description of the plan for trials of various devices, nor how that plan will be implemented and monitored. The IEP should have clarified the process of the assistive technology trial process, especially if the team intended to use data from these trials as part of ongoing monitoring of the student’s progress on IEP goals. Without this information, the level of the agency’s commitment of resources is unclear. Within 30 days of this complaint decision, the student’s IEP must be revised to include proper documentation in the program summary regarding the assistive technology devices and services to be provided to the student. Submit the revised IEP to the department within 10 days of completion.
During the complaint investigation, the parent also expressed concern that the student was sent home early during the 2021-22 school year because of behavior. Attendance records indicate on October 11 and 12, 2021, the student had a runny nose and congestion and was sent home early. The student was required to produce a negative COVID test result prior to returning to school. On November 1-5, 2021, the student’s classroom experienced a positive exposure to COVID, and the entire class was required to quarantine at home for a period of five days. During the complaint investigation, the district explained these shortened days and absences were in alignment with the district’s COVID protocol. Further, they shared there are no disciplinary records regarding the student.
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.