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IDEA Complaint Decision 22-044

On May 24, 2022 (form dated May 17, 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 this complaint. The issues identified are whether the district, during the 2021-22 school year:

  • Properly followed transfer procedures and provided special education services when a student with a disability transferred from another Wisconsin local educational agency (LEA),
  • Improperly changed the determination of disability category and individualized evaluation program (IEP) outside of an IEP team meeting, and
  • Properly developed the student's IEP regarding parent concerns and annual goals.

The student who is the subject of this complaint began the 2021-22 school year attending a virtual charter school in a nonresident school district through open enrollment. In September 2021, at the suggestion of the school, the student underwent an extensive private neuropsychological assessment. The assessment confirmed the student's academic functioning is very low compared to other children of the same age, especially in reading. The student has deficits in attention and working memory, which cause the student to require a significant amount of academic support, including set routines, adult modeling of problem-solving techniques, repetition, simplified instructions, and regular positive feedback. The student also was diagnosed with a generalized anxiety disorder. The neuropsychological report contains many suggestions for ways to best work with the student to address their needs. The report advises the best way for the student to learn is through intensive, one-to-one academic interventions.

The student's IEP team from the nonresident district met on November 30, 2021, and developed an IEP for the student that included specially designed instruction in math four times per month for 30 minutes per session, specially designed instruction in written language skills four times per month for 30 minutes per session, and one-to-one specially designed instruction in literacy skills twice per week for 30 minutes per session. The district then terminated the student's open enrollment in accordance with state open enrollment law because it did not have the ability to implement the one-to-one reading services the student required. Per open enrollment law, the student was to return to their resident school district.

The parent enrolled the student in the resident school district on December 10, 2021. The district participates with several other school districts in a virtual charter school consortium. Attendance at the virtual charter school is a parental choice option that is available for any student enrolled in the district. The student's parent chose to enroll the student in the virtual charter school.

While the virtual charter school provides coursework and instruction consistent with the district's general education curriculum and provides students accommodations and modifications according to their IEPs, the district's agreement with the virtual charter school does not include the provision of virtually specially designed instruction. District staff contacted the parent on December 13, 2021, to arrange an IEP team meeting to determine how the district would provide special education services given the student's participation in the virtual school. District staff sent to the parent a draft IEP. The student's parent contacted the district with some questions and concerns about the draft IEP, and district staff made changes. Staff shared the revised draft with the parent prior to the meeting.

The resident district's IEP team met on December 15, 2021, to develop the student's IEP. The IEP team determined that while the virtual charter school provided appropriate general education coursework, the student required in-person special education services to address the student's disability-related academic, attention, and focus needs. These services included direct, specially designed instruction in reading five days per week for 30 minutes per session and in-person speech and language therapy twice per week for 30 minutes per session. The services also included specially designed instruction in writing three times per week for 30 minutes per session and math twice per week for 30 minutes per session. This represents an increase in the amount of specially designed instruction the student would receive as compared to the IEP from the previous district. Notably, the direct reading instruction does not specify whether it is to be provided on a one-to-one basis; however, district staff indicated the team discussed utilizing an intensive, multisensory reading intervention designed to be delivered on a one-to-one or one-to-two basis. The resident district's IEP also includes several accommodations the student requires both in the special education and general education environments. The student was to attend school in person from 7:40-8:40 a.m. three days a week and from 7:40-9:15 a.m. twice per week. The remainder of the student's day would consist of participation in the virtual school at home. The parent did not have the student attend school for in-person instruction, but the student did begin receiving instruction from the virtual charter school at the beginning of the semester. The student received the accommodations as required by the IEP.

The student's parent informed the district they did not agree with the IEP. The student's parent felt the IEP as drafted was not the product of a team deliberation, and decisions had been made unilaterally by district staff. The parent raised significant concerns about how the district intended to provide the specially designed instruction in reading and was particularly upset it would not always be provided on a one-to-one basis. The student had not attended school in person for several years. The student's parent was not satisfied that the plan adequately addressed this and did not feel the IEP reflected a true picture of the student's disability, given the extensive neuropsych report and its recommendations. The district offered to provide the student's specially designed instruction at a location other than the school in order to get services started, including providing the services at home or at the district office.

During the month of January 2022, the parent corresponded with district staff. The parent emphasized they did not accept the district's IEP. The parent requested another IEP team meeting. District staff asked the parent for some dates and times that would work and to provide a list of concerns so the IEP team could be prepared to discuss them. Meanwhile, district staff contacted the student's parent concerned about the student's non-attendance at the in-person school and reminded the parent of compulsory school attendance requirements. The district provided the parent documentation about the intensive reading intervention they proposed to use and explained that the program was well known and researched and did not call for one-to-one instruction at all times. The district denied the parent's request that they be in the same room while the student was receiving services but offered the parent the option of waiting in another room while the services were provided.

The district and the parent unsuccessfully attempted to schedule mediation to address the parent's concerns in early February 2022. In mid-February 2022, the district suggested a different mediator, and the parent and district agreed to schedule mediation for April 5, 2022. Throughout the month of March 2022, the student continued to participate in virtual instruction but did not come for in-person special education services. A great deal of email communication continued between the parent, district, and mediator. A mediation session was held virtually on April 5, 2022. The mediator left the session before it ended, as they believed mediation was not going to be successful. However, after the mediator left, a potential agreement was drafted that would involve the student starting to attend in-person services the following Monday. The parent did not sign the proposed agreement and did not send the student to school.

On April 19, in an effort to better understand the student's learning needs and the parent's concerns, the district inquired about conducting a reevaluation of the student. The district sent a truancy letter to the parent on April 29, 2022. Throughout the month of May 2022, the district attempted to encourage the parent to provide consent to assessments for the reevaluation. The parent returned the form on May 26, 2022, indicating on the form that they did not provide consent and did not wish to proceed with a reevaluation. The district sent another truancy letter on May 27, 2022. The student never received in-person special education services from the district during the 2021-22 school year.

Whether the district properly followed transfer procedures and provided special education services when a student with a disability transferred from another Wisconsin school district

When a student with a disability transfers between Wisconsin school districts, the receiving district, in consultation with the student's parent, must provide a free appropriate public education (FAPE) without delay, including special education and related services comparable to those described in the most recent IEP until the receiving district adopts the student's IEP (including the evaluation and eligibility determination) from the previous district and provides the parents with an updated placement notice; the receiving district adopts the child's evaluation and eligibility determination from the previous district and conducts an IEP team meeting to review and revise the IEP, or the receiving district develops and implements a new IEP. Wis. Stat. §115.782(4)(b). If the receiving LEA cannot implement all services specified in the sending district's IEP, it must provide services comparable to those described in the student's IEP and hold an IEP team meeting to develop its own IEP as soon as possible after the student enrolls. 34 CFR §300.323(e). The receiving district may implement the special education and related services in the new IEP after providing proper notice to the parent.

Under the circumstances of this case, the district properly followed transfer procedures and made special education available to the student. Upon the nonresident district's termination of the student's open enrollment and the student's enrollment, the district adopted the previous district's evaluation but determined they would be unable to adopt the previous district's IEP. The district promptly scheduled an IEP team meeting to review, develop, and implement the IEP for the student. The parent raised concerns that the district was predetermining the student's programming and placement given the draft IEP the district provided prior to the IEP team meeting. School district staff members may not predetermine matters that are the responsibility of the student's IEP team. However, they may develop proposals for the IEP team to consider if the proposal is used solely for discussion purposes and is not represented as a final decision. 34 CFR § 300.501. District staff made it clear that the document was a draft and could be revised. During the meeting, revisions were made to the IEP in response to IEP team members' input and requests, including requests made by the parents. The student's parent was also concerned that the district proposed delivering services in a different manner than what was suggested by the previous district. However, given the differences in the virtual programs between the two districts, the changes were reasonable. Given the student's disability-related needs in reading, the intervention proposed by the district was reasonably calculated to provide the student the opportunity to make progress toward attaining IEP goals. The district understood that the transition to in-person services would be complicated and expressed its willingness to be flexible and to reconvene the IEP team after the student started to receive services to make any adjustments. Despite the parent not making the student available for instruction, the district stood ready to provide special education services as described in the IEP throughout the 2021-22 school year.

In the complaint, the student's parent raised concerns that the district shared the student's IEP with staff at the district's virtual charter school without first obtaining the parent's written consent to do so. The district remains responsible for ensuring resident students attending the charter school receive FAPE. While the district has adopted a practice of obtaining parent consent prior to sharing IEPs with the charter school staff, they must ensure that the charter school staff are informed of their responsibilities in implementing IEPs. The charter school staff had an educational need to know what was in the document. As such, the district did not need to obtain the parent's written consent before sharing the IEP with the district's charter school staff.

Whether the district improperly changed the determination of disability category and individualized evaluation program (IEP) outside of an IEP team meeting.

The student is identified as meeting the disability criteria for the area of Other Health Impairment (OHI). The student's parent received documentation following the December 15, 2021, IEP team meeting that erroneously indicated the student's disability area as Significant Developmental Delay (SDD). Years ago, prior to the student's open enrollment into the nonresident school district, the student had been served by the resident school district under the SDD category. During the years the student attended the nonresident district, a reevaluation was conducted, and the team changed the student's disability category to OHI. When the student re-enrolled in the resident district, the district's student information system reverted to the student's original disability category in error. This was a clerical error and has since been rectified by the resident district.

Whether the district properly developed the student's IEP regarding parent concerns and annual goals.

IEP teams must consider, discuss and address parents' concerns throughout the development of a student's IEP, and should consider utilizing the section of the IEP dedicated to parent concerns to document information parents share that is not included elsewhere. 34 CFR § 300.324(a)(ii); Wis. Stat. § 115.787(3)(a).

The IEP developed at the December 15, 2021, IEP team meeting included information about some of the parent's concerns, including mentioning the student had previously received ESY services, the importance of the private neuropsych report and its suggestions, and requests about specific classes to be added in the future. The IEP mentioned that the team would convene at a later date to consider ESY. On December 22, 2021, the parent emailed district staff raising multiple concerns. The parent repeated concerns that the IEP did not specify the student would receive one-to-one services and also expressed a preference for teletherapy for speech and language therapy due to the parent's past experience with district speech and language therapy staff. The parent also wanted greater detail in the IEP from the student's private neuropsych report, particularly regarding the student's working memory and executive functioning difficulties, and details the student's open enrollment termination and return to the resident school district. District administrative staff responded promptly and requested a bulleted list of the parent's concerns regarding the student's IEP and offered to conduct another IEP team meeting to discuss the concerns.

At the time of the December 15, 2021, IEP team meeting, the district properly documented the concerns of the parent based on their knowledge at the time. Since that IEP team meeting, the parent has raised additional concerns, but the IEP team has not reconvened to discuss them. The district and the parent should work together to clarify the parent's concerns before any future IEP team meeting, and the district should be prepared to discuss them during the IEP team meeting.

Each student's IEP must contain a statement of measurable annual goals designed to meet the student's disability-related needs that will enable the student to be involved in and make progress in the general curriculum and meet each of the student's other educational needs that result from the student's disability. Goals should be ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. 34 CFR § 300.320(a)(2); Wis. Stat. § 115.787(2)(b). Goals must contain a measurable baseline and level of attainment and a statement describing how the student's progress toward achieving the goal will be measured. 34 CFR § 300.320(a)(3)(i); Wis. Stat. § 115.787(2)(h).

The December 15, 2021, IEP described the student's present levels of achievement in reading and compared the student's levels with the expectations for grade level peers. One area of need identified was in oral reading fluency. The IEP indicates the student reads at a rate of nine words per minute and that peers read at a rate of 114 words per minute. The draft IEP presented by the district proposed an annual goal regarding reading, including several objectives, including an objective of raising the student's fluency from the baseline of nine words per minute to a level of attainment of twenty words per minute, as measured by teacher observation and work samples. The IEP from the previous district did not contain a goal or objective addressing reading fluency. The student's parent was unhappy with that proposed level of attainment, as it would not move the student toward closing the gap between the student's achievement and that of peers. The team discussed the parent's concern and adjusted the level of attainment to thirty words per minute. Moving forward, it will be important for the district to carefully monitor the student's progress, and if the student progresses at a rate that either exceeds or lags behind the level of attainment described in the goal, the IEP team should consider whether revisions or additional services are required. The district properly developed the student's IEP regarding annual goals.

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.