On June 3, 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 identified are whether the district, beginning in November 2021:
- Properly and timely responded to requests from the parent of a student with a disability for their representative to inspect and review the student's special education records, and
- Properly followed special education disciplinary requirements.
Whether the district properly and timely responded to requests from the parent of a student with a disability for their representative to inspect and review the student's special education records.
Under the Individuals with Disabilities Education Act (IDEA), local educational agencies (LEAs) must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the LEA. 34 CFR § 300.613(a). The LEA must comply with a request without unnecessary delay and before any meeting of a student's individualized education program (IEP) team, and in no case, more than 45 days after the request has been made. Id. The right to inspect and review education records under this section includes the right to have a representative of the parent inspect and review the records. 34 CFR § 300.613(b)(3). A representative must have written permission from an adult student or the parent or guardian of a minor student. Wis. Stat. § 118.125(2)(e).
The student that is the subject of this complaint was involved in a behavioral incident at the district's middle school with another student on November 3, 2021. During the incident, the student injured a district staff member that attempted to intervene. The student was arrested by law enforcement. A representative from an advocacy group contacted the student's parent following the student's arrest. On the morning of November 17, 2021, the student's parent signed two documents. The first gave members of the advocacy group consent to attend and have input at education meetings, act on the parent's behalf if the parent could not attend a meeting, and authority to communicate, request, receive, and review copies of the student's education records. The document specified that the parent could revoke any or all of the consent in writing at any time. The parent signed a second document authorizing disclosure of confidential information to multiple agencies and service providers that also permitted withdrawal of consent in writing.
Later in the morning on November 17, 2021, the representative sent the district an urgent record request, including incident referral documentation and manifestation determination documentation related to the incident. The representative emailed the request to the district's director of special education and a social worker and attached the signed consent form. The representative requested the records be provided that same day in order to review them in advance of attending the IEP team meeting scheduled for the next day on November 18, 2021.
Also, on November 17, 2021, the parent and the district's director of special education had a phone call about the next day's IEP meeting. The next morning prior to the IEP team meeting, the parent emailed the representative, letting the representative know that they wished to attend the IEP meeting alone. The parent did not revoke access to records or end the relationship with the representative in the email. As the parent requested, the representative did not attend the IEP team meeting. During the course of the investigation, the parent confirmed that they signed the advocacy group's forms and that same day, while on the phone with district staff, chose to verbally revoke the advocacy group's access to records.
On November 23, 2021, the representative emailed the director of special education a second time, requesting all student behavioral and special education records. On November 24, 2021, the director of special education replied by email, stating, "Per my conversation this morning with [the parent], we are unable to release any information to you. [The parent] has withdrawn permission for the[district] to release any information and/or documentation."
On December 17, 2021, the agency representative emailed the district's superintendent, requesting the records a third time. The superintendent responded on December 28, 2021, stating that the parent had revoked the advocacy agency's access on December 21, 2021. That day, the parent emailed the director of special education requesting, "[p]lease keep my child [the student's] records confidential per my request thank you."
On January 6, 2022, the representative emailed the superintendent and requested either the education records or the document in which the parent had revoked the advocacy group's access to education records. The representative indicated the request was urgent because there was a court date the following day. The complainant, a second representative of the advocacy group, alleged that the district never responded and never produced the parent's signed, written revocation of consent.
During the course of the investigation, the district submitted a written revocation of consent to the department that the parent confirmed signing on January 6, 2022. It referenced both the parent's verbal revocation on November 17, 2021, and the emailed revocation on December 21, 2021. While district staff submitted correspondence suggesting they believed the district had provided the written revocation to the advocacy group, the district did not provide any evidence of responding to the representative's request dated January 6, 2022. The complainant obtained the parent's consent and requested the student's education records again during an IEP team meeting on April 13, 2022. The district provided all responsive education records that existed on April 21, 2022.
The district's response on November 24, 2021, following the parent's confirmed verbal revocation and decision not to have the representative attend the IEP team meeting on November 18, 2021, was timely based on the unique facts presented. The district response on December 28, 2021, within 12 days of the December request, was timely. The district intended to respond to the January request within 45 days by obtaining and demonstrating the parent's written revocation of consent. However, there is no evidence the district responded. The district did not properly respond to the January 6, 2022, request from the representative to inspect and review the student's special education records. No corrective action is required.
Whether the district properly followed special education disciplinary requirements.
A student with a disability who is removed from their current placement pursuant to a disciplinary change of placement must continue to receive a free appropriate public education (FAPE), including services to enable the student to continue to participate in the general education curriculum, although in another setting. 34 CFR § 530(d)(1)(i). The general education curriculum is "the same curriculum as for nondisabled children." 34 CFR § 300.320(a)(1)(i).
Following the incident on November 3, 2021, the district held a manifestation determination meeting and found the behavior was directly related to the student's disability. The IEP team changed the student's placement from in school, in-person instruction to virtual instruction. The district arranged for the student to join the district's virtual general education platform after the IEP team meeting on November 18, 2021. The district provided the student access to the same virtual curriculum as nondisabled peers. The 2021-22 school year was the district's first year using this virtual platform. The student had self-paced assignments, quizzes, and tests in several subjects. District staff had one-on-one virtual meetings with the student to provide specially designed instruction and related services.
In a prior complaint decision regarding this student, IDEA complaint 22-039, the department stated that the parent had concerns about the virtual program as early as January 10, 2022. The parties discussed potential alternative in-person placements but did not convene an IEP team meeting. The parent sent an email on March 3, 2022, requesting to schedule a meeting to transition the student back to in-person learning. In IDEA complaint 22-039, the department found that the district did not reconvene the student's IEP team to address the concerns until April 13, 2022, and ultimately, the concerns were not resolved during the 2021-22 school year.
At the IEP meeting on April 13, 2022, the parent asked about many of the student's homework assignments that had not been graded within the virtual platform. The district staff member that managed the virtual instruction platform, who was present at the meeting, stated they were not sure of the cause of the issue and would investigate it. On April 14, 2022, the district discussed the problem with representatives of the virtual instruction platform and learned the cause of the issue. For essays, the platform conducted an automated plagiarism check that scanned and compared the essay to previously submitted essays within the system and content available on the internet. After the plagiarism check, the platform assigned an ethics score. Prior to meeting with the platform representatives, the district staff member erroneously believed that a high ethics score was good. However, the platform representative explained that a high score instead indicated suspected plagiarism. When the platform assigned a high ethics score to an assignment, the completed assignment showed in the staff interface as graded but counted as a zero in the student's overall grade. After the parent's prompting, the district quickly discovered the plagiarism issue. The district responded by email to the parent on April 18, 2022, to determine the best path forward. The district concluded that redoing every completed assignment with suspected plagiarism would be impractical. Instead, the district reset the English Language Arts (ELA) course that had the most suspected plagiarism and permitted the student to retake it in full.
While IDEA complaint 22-039 was pending, the complainant filed this complaint and raised concerns with failure to provide FAPE with the virtual instruction platform. The parties have agreed that the student did not receive FAPE during the virtual placement. In IDEA complaint 22-039, the department found that the district had improperly changed the student's placement following the manifestation determination and had not properly developed the student's IEP to address the student's behavioral needs during virtual instruction.
Under the unique facts presented, the district did not further violate special education disciplinary requirements. The district provided the student access to the same virtual curriculum as nondisabled peers but struggled to administer it. The issues that prompted the failure to provide FAPE were the same issues already decided in IDEA Complaint 22-039. The district was aware of the parent's concerns with virtual instruction in general three months before discovering the plagiarism issue, and the failure to promptly address the parent's concerns was part of the previous decision. The district reported that no other students in virtual instruction had major problems with grading as a result of suspected plagiarism. The district decided not to use the virtual instruction platform described in this complaint in the future.
One component of the corrective action in IDEA complaint 22-039 is that the parties must meet to determine compensatory services for the time period between November 8, 2021, and May 27, 2022. No additional corrective action will be required.
This concludes our review of this complaint, and 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.