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IDEA Complaint Decision 22-040

On April 28, 2022 (form dated April 25, 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, which pertain to the 2021-22 school year, are included below.

Did the district properly implement the student's individualized education program (IEP) regarding alternative and augmentative communication (AAC) devices and services, including aided language stimulation, monitoring of food and water intake, provision of specialized transportation, and communication logs between school and family?

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 IEP, and implementing the program articulated in the IEP. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services, which must be included in the IEP. All services must be clearly stated 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)(4) and (a)(7).

The student who is the subject of this complaint is a sixth-grader who qualifies for special education and related services under the area of other health impairment. The IEP in effect at the beginning of the 2021-22 school year was developed at an IEP team meeting held on August 27, 2021.

The student's IEP indicates the student required both an AAC device for the student and a communication partner device, which were to be available all day in all environments for the entire school year. The partner device was unavailable until November 2021, after school started in September 2021. District staff received training on how to program and use the devices, but there was confusion about who was responsible for programming the partner device. The student was often distracted by the partner device and was not able to concentrate on the ACC device while the partner device was in use. The IEP team ultimately determined the partner device was not effective and discontinued its use. The district did not properly implement the student's IEP regarding the partner communication device during that time.

The student's IEP required daily use of aided language stimulation as a supplementary aid and service. This service was required throughout the school day in any environment when there was a participation requirement or social interaction during the entire school year. Interviews with staff confirm this service was provided throughout the school year. The IEP required staff to provide documentation of this service to the parent through a daily communication log. The parent noted staff did not complete the log on a daily basis to document the provision of this service. During interviews with the department, district staff admitted they failed to provide these logs daily.

The IEP required daily documentation of the student's food and water intake as a supplementary aid and service for the entire school year. During interviews, district staff admitted they did not provide daily documentation of the student's food and water intake to the parent as required by the IEP.

The student's IEP indicates the student requires specialized transportation to and from school five days per week. The IEP does not indicate whether the student needed any specific additional supports, such as an aide, during transport to and from school. When the district sent the parent a copy of the student's IEP, the parent received a district form regarding transportation for the 2021-22 school year appended to the IEP. The form notes under a section entitled Transportation Needs that an Attendant/Aide and Car Seat are required. The parent believed the form meant an aide and car seat would be provided on the transportation; however, no such supports were provided. The district staff were unable to confirm the origin or accuracy of the form. IEP teams are responsible for determining student needs and should document in the IEP any specific services or supports, including any safety equipment or additional staffing. DPI Information Update Bulletin 18.01, "Transportation Questions and Answers," January 2018. No members of the student's IEP team recalled a discussion at the IEP team meeting about any additional services or supports required for the student on the bus. Based on the information outlined above, the district did not properly implement the IEP of a student with a disability. Within 45 days from the date of this decision, the IEP team must meet to determine whether additional supports are required to provide the specialized transportation and to consider whether compensatory services are necessary for the student due to the district's improper implementation of the student's IEP during the 2021-22 school year. The district must send a copy of the student's revised IEP, including documentation of the consideration of compensatory services, to the department within 10 days following the IEP team meeting. Within 45 days from the date of this decision, the district must also send the department a correction plan to ensure that student IEPs are properly implemented.

Did the district properly develop the student's IEP to address the student's regression or lack of progress in areas of academic and functional skills?

A school district meets its obligation to provide each student with a disability a FAPE by developing and implementing an IEP that meets the student's unique disability-related needs and allows the student to make appropriate progress. For most students, this means progress sufficient for the student to progress in the general curriculum from grade to grade. When this is not possible, the IEP must be appropriately ambitious in light of the student's circumstances. Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP team must review a student's IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved and revise the IEP, as appropriate, to address any lack of expected progress toward the annual goals and in the general education curriculum. 34 CFR § 300.324(b)(i).

The student's IEP team identified several disability-related needs, which included needs in language development, communication, and pre-literacy skills. The student is nonverbal and primarily uses a voice-output AAC communication device. The student has reduced strength, stamina, and motor control, causing the student to require assistance for safety and modifications for physical education classes. The student has needs related to adaptive skills for personal care and for independently following routines and delays in fine motor and visual motor skills. The student has needs related to his ability to learn social skills and play skills to increase classroom participation opportunities. The student has delays in basic reading, math problem solving, and written expression. The student requires modified materials and additional supports to access the regular education curriculum.

As part of the student's transition to middle school, the IEP team reviewed the student's annual goals during the IEP team meeting on August 27, 2021. The student demonstrated mixed progress toward meeting communication goals. For example, the student did not meet an annual goal involving the use of the AAC device to demonstrate improvement in foundational reading skills. However, the student met some short-term objectives (STOs) related to the annual goal. The progress report showed the student made some progress in pointing to pictures of different seasons and touching pictures in the order of events occurring in a story. The IEP team pointed out improvements in the STOs and noted the intent to continue to work on the overall goal in the student's sixth-grade year.

The team determined the student did not meet an annual goal or associated STOs related to the use of the AAC device to improve expressive language. The team noted the student had not been able to use the device to produce short phrases in three of four opportunities or core vocabulary to talk about favorite things or descriptive phrases. The team decided to continue to work on this goal in the sixth-grade. The student met an annual goal to improve foundational writing skills using the AAC device. The student met STOs regarding composing short sentences about how the student was feeling, making requests such as asking for more milk and independently writing their first name with or without the use of the AAC device.

The team noted that the student did not meet their foundational math skills annual goal or STOs, including counting 30 objects using the AAC device, partitioning shapes into equal parts, or recognizing patterns in nature and in everyday life. The team again noted its intent to continue working on these skills into the sixth-grade school year.

The team also noted the student did not meet an annual goal of increasing independence throughout the day by performing hygiene, bathroom, and independent tasks with minimal independence. However, the student met four out of six STOs related to this goal. The team made appropriate adjustments and committed to working on the goal and the skills in middle school.

During interviews, staff noted that throughout the school year, they carefully monitor student progress and review the information quarterly. The IEP team found the student had not regressed after extended school breaks and had made progress during his sixth-grade year. However, staff noted that the student's transition to middle school during the COVID pandemic affected the student's academic performance. The student's parent believed the present levels in the IEP underestimated the student's abilities. District staff assert the student likely performs somewhat differently for the parent at home than the school staff. The district properly monitored the student's progress and developed the student's IEP to address the student's progress in areas of academic and functional skills.

Did the district properly provide the student opportunity to meaningfully participate in the general education curriculum and instruction?

Each student's IEP must include a statement of the student's present levels of academic achievement and functional performance, including a description of how the student's disability affects their involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children.) 34 CFR 300.320 (a) (1)(i); Wis. Stat. § 115.787(2)(a). The IEP must determine the supports the student needs, including supplementary aids and services, to access the general curriculum and to be educated to the maximum extent appropriate with peers without disabilities. 34 CFR § 300.42.

The parent believed the student was not allowed access to general education instruction or materials. The parent felt the student did not receive modifications in general education classes such as health and wellness, digital literacy, and science. However, district staff provided several examples of adaptations and modifications to materials made for the student to lessons and materials that aligned with the general education standards for the student's grade level. The district provided charts, file folders, and other individualized instructional tools developed by the special education and program support teachers covering numerous activities for the student in language arts, math, social studies, science, health and wellness instruction and included direct links to the standards. The district properly provided the student an opportunity to meaningfully participate in the general education curriculum and instruction due to the modifications and adaptations the staff provided.

Did the district properly provide the student an educational placement in the least restrictive environment?

To the maximum extent appropriate, school districts must ensure students with disabilities are educated with children who are nondisabled. Special classes, separate schooling, or other removals of children with disabilities from the regular educational environment should be used only 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. 34 CFR § 300.114(a)(2). 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. 34 CFR § 300.117.

The district required all students and staff to wear face coverings as a COVID-19 precaution during the 2021-22 school year. The student had difficulty wearing a mask for an extended period of time. The student's IEP indicated that the student would be placed primarily in an environment to maintain as safe a distance as possible to reduce COVID transmission. The parent believed the student was alone in this classroom. However, other students, with and without disabilities, who could not wear masks were also in the room. The students using the space could move around the room, but the teachers helped them maintain a safe distance from their classmates by putting strips of tape six feet apart on the floor. The district noted the room was a general education environment as it was an option available to all students who could not wear face coverings. The district properly provided the student an educational placement in the least restrictive environment based on COVID safety restrictions and the student's inability to wear a mask.

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.