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IDEA Complaint Decision 22-042

On May 10, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). The issues that occurred during the 2021-22 school year are identified below.

Whether the district properly responded to parent requests for individualized education program (IEP) team meetings.

A parent may request an IEP team meeting at any time, and the district should grant any reasonable request for an IEP team meeting. If the district denies the parent's request for an IEP team meeting, the district must provide the parent with a notice of refusal in writing and include an explanation of why the district refuses to grant the request. 34 CFR § 300.503.

On February 7 and 13, 2022, the parents emailed the district requesting an IEP team meeting to discuss concerns that the student had no homework but was falling behind, was being isolated because of behavior, and was being bullied. On March 14, 2022, a district administrator emailed the parents in response to the requests for an IEP team meeting and offered to talk with the parents about their concerns. The parents responded by email with a list of concerns and suggested the IEP be revised to address the concerns outside of a meeting if an "emergency IEP meeting" could not be held. The district did not reply to the email. During the complaint investigation interview, a district administrator explained that a meeting was already scheduled for April 5, 2022, and with spring break occurring in-between and staff shortages in the district, the district did not have the capacity to consider the revisions to the IEP or reconvene the IEP team prior to April 5, 2022.

Requests for IEP team meetings must be responded to promptly. The district should have responded to the parents' early February request sooner than March 2022. Districts should grant any reasonable request for an IEP team meeting; if a meeting is denied, prior written notice must be provided to the parent. The district did not properly respond to parent requests for an IEP team meeting. The district must develop a corrective action plan to ensure it properly responds to parents' requests for IEP team meetings by promptly responding to requests by either scheduling a meeting within a reasonable time or providing written notice to the parent that they are refusing the request and why.

Whether the district properly conducted a special education reevaluation of a student with a disability regarding occupational therapy and speech and language therapy, including predetermining the results of the evaluation outside of a meeting of the student's IEP team meeting.

Occupational therapy (OT) is considered a related service under federal and state special education law. Related services are transportation and such developmental, corrective, and other supportive services required to assist a student with a disability to benefit from special education. OT must be provided by qualified staff. If a student is suspected of needing OT, the district must initiate a reevaluation, and the qualified therapy staff must be included on the IEP team. PI 11.24(2). A member of the IEP team may be excused from attending the IEP team meeting when the meeting involves a discussion of the member's area of related service if the parent consents in writing to the excusal and the member submits their written input to the IEP team prior to the meeting. 34 CFR § 300.321(e)(2). A student's score on any given test or tests neither qualifies nor disqualifies that student for school occupational therapy. It is the overall IEP team evaluation and program planning that leads to an IEP team decision of whether occupational therapy is required to assist the student in benefiting from special education. Department of Public Instruction, OT/PT Resource Planning Guide, 2011, p.66.

The student who is the subject of this complaint was previously found eligible for special education under the disability category of other health impairment (OHI) due to an attention deficit hyperactivity disorder (ADHD). On January 28, 2022, the parents requested an evaluation to consider the need for OT and speech and language therapy. An IEP team meeting was scheduled for April 5, 2022, to determine if the student needs occupational therapy, meets the criteria for speech and language impairment, and needs speech and language therapy. The occupational therapist and speech and language pathologist were invited to attend as IEP team members. The occupational therapist was available to attend the IEP team meeting as originally scheduled. The occupational therapist conducted assessments on March 1, 2022, which consisted of observation in math class, a standardized assessment of motor proficiency, and assessments of handwriting and activities of daily living. The OT prepared a report including the statement, "Occupational Therapy is not appropriate as [the student] is functionally able to complete all fine motor tasks, writing is legible with appropriate capitalization, letter formation, punctuation, and orientation to baseline, and the student is independent in dressing tasks." On March 2, 2022, a district staff member informed the parents via email that the student did not require OT. The parents complained to the district that the decision regarding OT was made outside of an IEP team meeting. The district rescheduled the meeting for April 6, 2022, so the occupational therapist could attend.

At the meeting, the occupational therapist reviewed the results of the OT evaluation, concluding that the student had age-appropriate motor skills but was easily distracted. The parents expressed concern that the student's sensory needs, as evidenced by drooling and chewing on objects, had not been assessed, the district used only one standardized assessment, and the writing samples were completed at home with 1:1 coaching and did not reflect the student's daily classroom work. Neither the referral form submitted by the parents nor the existing data review specify sensory concerns. During the evaluation, the occupational therapist did not observe any behaviors, such as drooling or chewing on objects, which indicated a need to assess sensory processing. The district did not rely on a single assessment in conducting the evaluation but included a standardized assessment, observation, and assessments of handwriting and daily living skills. District staff erred when they concluded prior to the IEP team meeting that the student did not need OT as a related service. The occupational therapist was required to attend the meeting unless excused in writing by the parent. The decision as to whether the student needs occupational therapy must be an IEP team decision. The district realized its error and immediately rescheduled the IEP team meeting to include the occupational therapist. During the April 6, 2022, IEP team meeting, the occupational therapist attended, discussed the need for OT, and the IEP team properly determined the student did not require OT.

At the April 6, 2022, IEP team meeting, the IEP team also discussed the results of the speech and language assessment conducted on February 23, 2022. The evaluation consisted of formal assessments of receptive and expressive language, semantic skills, verbal problem-solving skills, and speech-sound production for single words; informal assessments of articulation and stimulability and a spontaneous speech and language sample during a general conversation; classroom observations by the speech/language pathologist during physical education and in the hallways; observations by classroom teachers; and a student interview. The speech and language evaluation report include a summary statement, "[the student] does not meet the criteria for a speech and language impairment at this time. Following a discussion of the state eligibility criteria, a decision regarding [the student's] eligibility and need for speech and language therapy will be made by the IEP team members…" During the IEP team meeting, the pathologist shared that the student's speech and language skills appear to be within the average range, but receptive language is affected by the student's distractibility and impulsivity. The parents shared that the student sometimes stammers, and they believe this causes a negative reaction from peers. The parents expressed concern that the student was aware of being observed during the evaluation and did not present typical behaviors. The speech and language therapist's observations, however, are consistent with the classroom teachers' daily observations that the student demonstrates the ability to use age-appropriate speech and language skills but needs frequent reminders to take turns, stay on topic, and lower their volume.

Although the speech and language evaluation report included a preliminary judgment that the student did not meet the criteria for a speech and language impairment, it also included a statement that the IEP team would make the decision. District staff must come to an IEP team meeting prepared to discuss evaluation findings and preliminary recommendations. Staff may have preliminary discussions about potential services and placements in advance of an IEP meeting; however, the determination about services and placement must be made by the IEP team as a whole at the meeting. The IEP team discussed the results of the speech and language evaluation during the meeting and determined the student did not meet the disability criteria to qualify as a student with a speech and language impairment. However, speech and language therapy can also be provided as a related service to any student with an IEP if the IEP team determines such services are necessary for the student to benefit from special education, without regard to whether the student qualifies as a student with a speech and language impairment. Department of Public Instruction Information Update Bulletin 03.02. There is no documentation if the IEP team considered if the student needed speech and language therapy as a related service. 34 CFR § 300.34. District staff confirmed during the complaint investigation that the IEP team erroneously failed to consider whether the student might require speech and language therapy as a related service because the student did not meet the criteria for a speech and language impairment.

Within 45 days of this complaint decision, the IEP team must reconvene to consider if the student needs speech and language therapy as a related service. The district must include documentation of the consideration and determination within the revised IEP and provide the department with a copy of the revised IEP.

Whether the district properly incorporated changes agreed to at an IEP team meeting into the IEP; implemented the student's IEP regarding supplementary aids and services; ensured staff were informed of their specific responsibilities in implementing the student's IEP; and provided parents a copy of the student's IEP prior to its implementation.

An IEP is a written statement for a student with a disability that is developed in an IEP team meeting and includes a statement of the supplementary aids and services to be provided to the student. 34 CFR § 300.320(a). The IEP is a written record that reflects the discussion and decisions of the IEP team. As soon as possible, following the development of a student's IEP, special education services must be made available to the student in accordance with the student's IEP. 34 CFR § 300.323(c)(2). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d). A district must provide parents with written notice of a reasonable time before the district implements the student's IEP and placement. 34 CFR § 300.503(a).

During the April 6, 2022, IEP team meeting, the parents discussed the need for the following supplementary aids and services: testing accommodations to help with reading and interpreting questions; shortened assignments; no zeros for late or missing work; no withholding lunch, recess, special classes or extracurricular activities when there is late or missing work; when 1:1 support is not available, participation in a small group or partner work with peers; no placing the student behind a barrier, such as a curtain, to isolate from peers; and the use of audiobooks to support reading class assignments in the special education classroom. The parents also requested a behavior tracking system be used with the student and a second set of textbooks be provided in the home. The district discussed these requests and explained to the parents that the IEP would be updated, and a copy would be available in the district office for the parents to review within a week. The parents made multiple attempts to obtain a copy of the revised IEP but were informed by the district via email on April 21, 2022, that the IEP would not be updated because no changes in programming would occur for the remainder of the school year. The parents did not believe this explanation was consistent with the discussion and decisions made by the team at the student's IEP team meeting. On May 26, 2022, the district provided the parents with a revised copy of the IEP. The revised version included most of the changes the IEP team discussed other than the behavior tracking system and a second set of textbooks. During the complaint investigation, the district explained that the behavior tracking system was discussed but not finalized, and the textbooks would be provided next school year.

The cover page of the IEP, dated April 6, 2022, indicates the projected implementation dates of the IEP services are April 6, 2022, through April 5, 2023. The placement notice included with the IEP is dated April 6, 2022, but was provided to the parents on May 26, 2022. The district acknowledges the IEP was not finalized and nor was it provided to the student's parents in a timely manner. The district's usual practice is to provide parents a revised copy of every IEP within a week following the IEP team meeting and for the student's IEP case manager to inform staff providing the supplementary aids and services of their responsibilities prior to the implementation date of the IEP. In this situation, the student's case manager believed no new IEP services would be implemented during the remainder of the school year; however, multiple services were added to the program summary and the projected implementation date remained April 6, 2022. Other services discussed by the IEP team, such as the behavior tracking system and an extra set of textbooks, were not included in the student's revised IEP. The district did not properly incorporate changes into the student's IEP, implement the supplementary aids and services in the IEP, and ensure staff were informed of their specific responsibilities.

Within 45 days, the district must revise the student's IEP to include all agreed-upon services for the 2022-23 school year and ensure staff is aware of their IEP responsibilities prior to the start of the school year. As part of its corrective action plan, the district must ensure IEPs are implemented as written during the 2022-23 school year. The corrective action plan must include an internal system of control that utilizes periodic checks to verify services are provided. Submit the revised IEP and corrective action plan to the department.

Whether the district properly responded to allegations of bullying regarding the student.

Schools have an obligation to ensure a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education in accordance with their IEP. The school should, as part of its appropriate response to the bullying, convene the student's IEP team to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. Office of Special Education Programs Dear Colleague Letter on Bullying, Aug. 20, 2013.

On February 1, 2022, the student's parents received an email from a district teacher informing them the student was kicked in the back during class. The next day, the parents emailed the school principal regarding the incident and asked about consequences for the other student's behavior. The principal responded that the consequences would not be shared with the parent, but the principal was working on a change in the lunch seating to separate the students, per the parents' request. On February 21, 2022, a teacher informed the parents after school that the student was "tapped" in the back of the head during class; however, the student reported the incident to the parents as having been "kicked" in the head. The student was sent to the principal's office, and the perpetrator was sent to the teacher's office. The parents emailed the principal the same day and informed the principal that students are "bullying [the student] about stuttering and acting like [the student] is crazy." There was no response from the principal. On February 25, 2022, the parents received a phone call from the school principal informing them the student was hit across the face with a hockey stick during physical education class earlier in the day. District staff took a picture of the student's face and sent the picture to the parents after they requested to see the picture. On March 3, 2022, the parents requested a referral be made to law enforcement regarding the hockey stick incident. The parents noted "the bullying" was not an isolated incident but was escalating. The district did not respond.

In early February 2022, the parents requested an IEP team meeting to discuss their concerns about bullying, and the district did not grant their request. An IEP team meeting was held on April 6, 2022; however, bullying was not discussed at the meeting. Within 45 days, the district must hold an IEP team meeting to discuss the parents' concerns regarding bullying against the student and revise the student's IEP to document the discussion and any additional services, if needed, to address their concerns. The IEP must also consider whether compensatory services are required for the failure to address the bullying earlier. Submit a copy of the student's revised IEP to the department.

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.