On June 6, 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, during the 2021-22 school year:
- Properly implemented the individualized education programs (IEPs) of students with disabilities regarding the provision of specially designed instruction, adaptive physical education services, and speech and language therapy;
- Properly monitored students' progress toward attaining annual IEP goals and provided parents periodic updates as required by students' IEPs;
- Properly conducted a reevaluation of a student with a disability;
- Ensured each Student's IEP team meets 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;
- Properly conducted IEP team meetings, including all required participants;
- Properly developed IEPs to address student behavior and communication needs; and
- Properly determined placements in the least restrictive environment, including placing students on a shortened day.
This complaint pertains to multiple students, and we will address the issues as they apply to each student separately.
Student A: Whether the district properly implemented the IEP regarding the provision of specially designed instruction and adaptive physical education services; and properly monitored the student's progress toward attaining annual IEP goals and provided parents periodic updates as required by the IEP.
School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR §300.323 and Wis. Stat. §115.787. School districts must ensure each student's IEP is accessible to any regular education teacher, special education teacher, related service provider, or any other service provider that is responsible for its implementation, and inform staff of their responsibilities related to implementing the IEP and the specific accommodations, modifications, and supports that have to be provided based on the IEP. 34 CFR §300.323 (d).
The district's practice is that IEPs are available for special education administrative staff, case managers, and some related service providers, but full IEPs are only provided upon staff request. The district informs staff of their IEP responsibilities through meeting with and going through IEPs with staff responsible for implementation prior to the school year, various meetings, and sharing a Google document. The Google document includes the student's name, grade, case manager, disability category, and a checklist of the accommodations to be provided. The other parts of the student's IEP program summary, such as the specially designed instruction, related services, and some details of the accommodations, are not necessarily included in the Google document. Some staff report that they did not know they could request to view full student IEPs or were not sufficiently informed of the IEP accommodations for students they worked with.
On September 1, 2021, the first day of school for the 2021-22 school year, Student A had an IEP in effect that included specially designed instruction in several academic areas, including Speech and Language and Adaptive Physical Education. On December 13, 2021, the IEP team met and developed another IEP for the student, which was implemented for the remainder of the school year. The specially designed instruction remained the same, but the amount and frequency of some of the services were slightly adjusted. District staff confirmed that while the student remained in the special education classroom during the time specified in the IEP, the specially designed instruction provided was an informal combination of academic and life skills content that was both virtual and in-person and varied from day to day. While the student has a disability-related need in life skills, particularly making meals, personal hygiene, independence, and post-secondary options, there is no specific commitment of services or specially designed instruction in the IEP to address those needs. The generalized statements of specially designed instruction in academics without mentioning the life skills instruction does not provide sufficient clarity as to what services should be provided or when they should be implemented. The error in developing the IEP regarding specially designed instruction renders it impossible to determine whether the IEP was properly implemented.
School districts must ensure periodic reports are provided to the parents of a student with a disability on the progress the student is making toward meeting each goal as specified in the Student's IEP. 34 CFR §300.320 (a)(3)(ii), §300.323(a); Wis. Stat. §115.787(1), §115.787 (2)(h)(2). The report must address progress toward each stated, measurable goal or objective that is aligned with and directly related to the goal or objective statement and provide data or other information consistent with the baseline and level of attainment for the corresponding goal or objective. The reports must provide sufficient information so the parent can determine the degree to which the student has made progress toward meeting each goal or objective. Student A's IEPs in effect during the school year stated that progress on the annual goals would be provided on the same quarterly schedule as district report cards. There is evidence that the progress reports were provided with report cards to the parent. However, the reports did not include information about the student's progress toward each goal, and when progress was reported, it did not always include data consistent with the baseline and level of attainment that would allow the parent to determine the degree to which the student had made progress. Once these reporting errors were discovered, district staff collected additional data and wrote an updated progress report which was provided to the parent at the end of the school year. The district failed to properly provide the parents of Student A with sufficient information to allow for periodic updates on IEP goals as required. No student-specific corrective action is required.
Within 30 days of the date of this decision, the district must convene an IEP team meeting to review the concerns of the parents and determine the student's disability-related needs and accompanying goals and special education services (specially designed instruction, related services, supplementary aids and services, and program modifications and supports). The department recommends the district hold an annual IEP meeting rather than reviewing and revising the current IEP and consider utilizing the services of the Wisconsin Special Education Mediation System for this process. The district must provide a revised copy of Student A's IEP, a short narrative of any changes, and the updated progress report to the department within 10 days of the IEP team meeting.
Student B: Whether the district properly implemented the IEP regarding the provision of specially designed instruction; and properly developed the IEP to address communication needs.
School districts must provide each student with a disability with a FAPE in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by implementing each student's IEP. The IEP must include a clear description of the service to be provided, so the school district's commitment to resources is clear to the parent and all involved in developing and implementing the IEP. 34 CFR §300.323 and Wis. Stat. §115.787.
The IEP team met on August 31, 2021, to develop Student B's IEP that was in effect for the 2021-22 school year. The IEP included a clear description of specially designed instruction in Adaptive Physical Education, including amount and frequency. The IEP also included a general statement about providing a variety of skills and lessons for the entire school day for the academic year. The investigation confirmed that the student received the Adaptive Physical Education as described in their IEP. IEP team members were unable to explain the meaning of the other statement of specially designed instruction. The generalized statement of specially designed instruction to be provided for the entire school day without additional details does not provide sufficient clarity as to what services or when the services should be implemented and does not clearly describe the district's commitment of resources. The error in developing the IEP regarding specially designed instruction renders it impossible to determine whether the IEP was properly implemented.
In developing the student's IEP, the IEP team must consider the communication needs and whether the child needs any assistive technology devices or services in the provision of FAPE to the student. 34 CFR §300.324(a). An assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability. When documenting assistive technology as a related service or a supplementary aid and service in a student's IEP, a service description along with the service's frequency, amount, location, and duration must be included in the IEP program summary.
When the IEP team met on August 31, it considered the student's communication needs and described how the student was working on simple sign language, picture posters, and picture icons to improve their communication. In the special factors section of the IEP, the team described that the student needs assistive technology or devices, including pictures to check understanding and picture icons. The student's family expressed concerns about relying on picture cues and requested that the IEP team work toward improving the student's sign language automaticity. The IEP explains the student's disability-related communication needs, specifically the student's use of pictures and sign language. The IEP includes a goal to increase the student's use of sign language to meet their basic needs but explains that the student needed to continue to use pictures until the student's use of sign language improves. The related services section of the IEP states assistive technology is to be provided; however, the student's IEP does not describe the type of assistive technology. In failing to clearly describe the needed assistive technology or assistive technology services in the program summary, the district failed to properly develop an IEP to address the student's communication needs.
Within 30 days of the date of this decision, the district must convene Student B's IEP team to discuss the concerns of the parents, determine a clear commitment of specially-designed instruction, and document the student's assistive technology needs. The district must provide a revised copy of Student B's IEP and a short narrative of any changes to the department within 10 days of the IEP team meeting.
Student C: Whether the district properly implemented the IEP regarding the provision of specially designed instruction and speech and language therapy; ensured the IEP team met periodically, but not less than annually, to determine whether the annual goals were being achieved and revise the IEP, as appropriate; and properly conducted an IEP team meeting including all required participants.
School districts must provide each student with a disability with a FAPE in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR §§300.323(c)(2) & 300.324. The complainant is particularly concerned about the provision of specially designed instruction for Student C in English and described that the student struggles to read and write and does not know letter sounds. The IEP in effect for the student for most of the 2021-22 school year included specially designed instruction "extended learning time" on a daily basis for a specified number of minutes. The student's IEP does not include speech and language therapy. On May 9, 2022, Student C's IEP team met for their annual IEP meeting. The IEP developed at that meeting listed specially designed instruction as a resource time and English, both on a daily basis, for a specific number of minutes and did not include speech and language therapy. During Student C's instructional block in reading, they were in a small group special education classroom with multiple students. The complainant felt that the student required direct 1:1 reading instruction, but the student's IEP did not call for that specific service. During the investigatory process, it was determined that the district provided the specially designed instruction listed in the IEP and that the student made appropriate progress during the school year. Student C's IEP did not include speech and language therapy, so it is appropriate that none were provided. The district properly implemented the specially designed instruction for Student C.
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)(1). During the investigation, the district submitted evidence that the IEP team met on May 14, 2021, and again on May 9, 2022. Based on the information provided, Student C's IEP team met in a timely manner when it met on May 9, 2022. The district ensured the IEP team met periodically, but not less than annually, to review whether the goals were being achieved and to revise the IEP.
A district must ensure that the IEP team for each student with a disability includes the student's parent, at least one special education teacher, or, where appropriate, at least one special education provider of the child. 34 CFR §300.321; Wis. Stats. §115.78. Districts have the discretion to assign staff members to fulfill required roles on each Student's IEP team. The complainant stated that Student C's IEP team met in May 2022 without the student's primary special education teacher, known in the district as the "case manager." The district acknowledges that the student's case manager did not attend the IEP team meeting; however, the district assigned a different special education teacher who worked with the student to the IEP team. The assigned teacher attended the meeting. Interviews and documentation confirm that the IEP team meeting included all required participants. The district properly conducted an IEP team meeting for Student C, including all required participants, on May 9, 2022.
Student D: Whether the district properly implemented the IEP regarding the provision of specially designed instruction; properly conducted a reevaluation; and ensured the IEP team met periodically, but not less than annually, to determine whether the annual goals are being achieved and revise the IEP, as appropriate.
School districts must provide each student with a disability with a FAPE in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR §§300.323(c)(2) & 300.324. 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)(1).
The complainant raised concerns that student D's IEP was not reviewed at least annually and that the student was not receiving appropriate specially designed instruction in math, stating that the student needs one-on-one or smaller group instruction. On November 18, 2020, the IEP team met and developed the IEP in effect at the beginning of the 2021-22 school year, which included specially-designed instruction in math and extended learning time for a particular number of minutes per day. On November 11, 2021, the IEP team met and developed an annual IEP for the student that states the student would receive specially-designed instruction every other day in math, as well as daily reading and extended learning time for a certain number of minutes. The district acknowledges that Student D was in a class with other students; however, this was consistent with the student's IEP. In the IEP team meeting on November 11, 2021, the district conducted an IEP review of the student's annual goals to determine if they had been met and revised the IEP accordingly. Despite properly conducting the annual IEP team meeting within one year, the district admits the IEP was not finalized until April 5, 2022. The district states that the November 11, 2021, IEP was implemented during this time. However, all district staff responsible for implementation did not have access to the finalized IEP; therefore, Student D's revised IEP was not fully implemented from November 12, 2021, through April 5, 2022.
Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student continues to have an impairment and require special education. Wis. Stat. §115.78(3)(a); 34 CFR §§300.304-306. The complainant asserts that Student D's parents requested a three-year reevaluation during the fall of 2021. The district admits that the IEP team did not promptly complete Student D's reevaluation. Documentation illustrates an IEP team was planned for November 30, 2021, to complete the reevaluation, but never took place. Ultimately, the IEP team did not meet to complete the reevaluation until July 7, 2022. The district did not properly conduct a reevaluation of the student in a timely manner.
The IEP team met on July 7, 2022, to discuss changes to Student D's IEP and compensatory services. The student's parents did not wish for the student to receive compensatory services during the summer but requested materials for the student to use over the summer. The district provided the requested materials. No further student-specific corrective action is required.
Student E: Whether the district ensured the IEP team met periodically, but not less than annually, to determine whether the annual goals were being achieved and revised the IEP, as appropriate.
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)(1). The IEP in effect for Student E at the beginning of the school year was developed at an IEP team meeting on November 16, 2020. The district provided evidence that Student E's IEP team met on November 12, 2021, to conduct an annual review of the IEP. The district timely met to review the student's IEP; however, the district admits the paperwork from the November 12 IEP meeting was not finalized until February 22, 2022. District staff provided evidence that they had discussed this error with the student's parents, and the parents declined any compensatory services. No additional student-specific corrective action is required.
Student F: Whether the district properly implemented the IEP regarding the provision of specially designed instruction.
School districts must provide each student with a disability with a FAPE in the least restrictive environment. School districts meet their obligation to provide a FAPE to each student with a disability, in part, by implementing each student's IEP. 34 CFR §§300.323(c)(2) & 300.324. The IEP in effect at the beginning of the 2021-22 school year for Student F included resource time every other day for a particular amount of minutes as their specially designed instruction but did not specify that the district provided the student specially designed instruction in reading during that block of time. On May 9, 2022, Student F's IEP team met and revised the student's IEP to clarify the IEP regarding the student's daily specially designed instruction in reading. The complainant was also concerned about the manner in which the district provided specially designed instruction for Student F in math, stating that the student required one-on-one or very small group instruction. During the 2021-22 school year, the district provided the student's specially designed instruction in math in a classroom where other students were working on other subjects. Providing the student's specially designed math instruction in this setting was not inconsistent with Student F's IEP. The district properly implemented Student F's IEP regarding specially designed instruction.
Student G: Whether the district properly developed the IEP to address behavior; and properly determined the placement in the least restrictive environment, including placing the student on a shortened day.
In developing each student's IEP, the IEP team must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. If the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. 34 CFR §§300.320(a), 300.324(a).
The IEP in effect for Student G during the beginning of the 2021-22 school year was developed at a meeting in January 2021. The IEP indicates that under some circumstances, the student exhibits behaviors that become a distraction to other students, including loud, verbal aggression, and leaving the room. The Student's IEP references giving the student a list of work expectations, choices about how to complete work, and lots of praise helps the student learn best, but does not describe these as positive behavioral supports with a clear description of the frequency, amount, duration, and location of the services in the student's IEP. As such, the district did not properly develop Student G's IEP to address the student's behavior.
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). Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; Department Special Education Information Update Bulletin 14.03. It is only appropriate to shorten the length of the school day for a student with a disability if the student's IEP team determines a shortened day is required to address the student's unique, disability-related needs. In developing a student's placement, IEP teams must document all options considered and the reasons those options were rejected.
In early November 2021, the student engaged in a behavioral incident while at school that was significantly different compared to the student's previous behavior as a result of changes in the student's mental health. The district medically excused the student from attending for five days, during which the student's parents placed the student at a mental health facility for treatment. On December 1, 2021, Student G's IEP team convened to conduct an annual review of the student's IEP and determine the student's placement. Given the changes in the student's mental health, the IEP team, including the student's parent, determined the student would do best in a homebound placement for the time being. During the complaint investigation, the district explained that home-based virtual instruction was an option that was available to all students in the district who had medical concerns, and the plan for this student was very similar to the typical homebound instruction plan. The student maintained a full day of instruction but was able to participate in all classes virtually. The district indicated the student could return to in-person attendance at any time when the parents determined the student was ready.
The student's attendance during homebound instruction was inconsistent. From January through May 2022, the student was frequently absent, and these absences were not excused. On May 9, 2022, a district staff member spoke with the student's parent about the student beginning to attend school in person again from 1:45-3:10 p.m. While the student's attendance improved some, the student did not consistently attend school or homebound programming through the end of the 2021-22 school year. The district should have conducted an IEP team meeting to address the student's absences and determine if additional services or supports were necessary due to the impact of and reasons for the absences.
Beginning in June 2022, in recognition of the instruction the student missed during the 2021-22 school year, the district began providing the student in-person, extended school year services. These services are also designed to prepare the student to return to in-person school at the beginning of the 2022-23 school year.
Prior to the beginning of the 2022-23 school year, the district must hold an IEP team meeting to determine and clearly describe Student G's placement and positive behavioral interventions and supports for the student. The IEP team must review the student's progress during the summer and consider whether compensatory services are required for the student. The district must provide a revised copy of Student G's IEP and a short narrative of any changes to the department for review within 10 days of the IEP team meeting.
Student H: Whether the district properly developed the IEP to address behavior; and properly determined the placement in the least restrictive environment, including placing the student on a shortened day.
In developing each student's IEP, the IEP team must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. If the student's IEP team determines the student's behavior impedes the student's learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address the behavior. 34 CFR §§300.320(a), 300.324(a).
The IEP team for Student H met on November 11, 2021, to review and revise the student's IEP. The IEP indicates the student's behavior impacts the student's ability to be involved in the same activities and environment as peers due to "inappropriate comments, swearing, threatening behaviors, and impulsive disrespectful behavior." The IEP contains an annual goal for the student to utilize coping strategies to help regulate emotions, such as deep breathing, going to a safe location, writing down feelings, and listening to music before the student's behavior escalates. While these behavioral supports are mentioned in the IEP, they are not described with clear descriptions of their frequency, amount, duration, and location. The only specially designed instruction in Student H's IEP is described as resource time for 42 minutes daily with cues for redirection, with the location as "all in-person or online special education classrooms or alternative setting." While the IEP contains many different strategies for the student, it does not provide clear descriptions of the frequency, amount, duration, and location of the services in the student's IEP.
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). Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; Department Special Education Information Update Bulletin 14.03. It is only appropriate to shorten the length of the school day for a student with a disability if the student's IEP team determines a shortened day is required to address the student's unique, disability-related needs. In developing a student's placement, IEP teams must document all options considered and the reasons those options were rejected.
During the course of the school year, the student's parent expressed concern to district staff about the student's well-being and told staff they were considering unenrolling the student from the district to try homeschooling. District staff met with the parent to discuss their concerns and offered the parent the option of the student participating in home-based virtual instruction through the school district. During the complaint investigation, the district explained that home-based virtual instruction was an option that was available to all students in the district, and the plan for this student was very similar to the typical homebound instruction plan. The student was familiar with this arrangement, given periods of remote instruction associated with the COVID-19 pandemic. The student would maintain a full day of instruction but continue to be able to participate in all classes virtually. The district indicated the student could return to in-person attendance at any time when the parents determined the student was ready. The parent agreed to this arrangement on April 22, 2022. Because the student's daily schedule was not altered when the student changed to homebound instruction, the district did not shorten the student's school day.
Beginning in June 2022, the district began providing the student with in-person, extended school year services designed to allow the student to make progress toward achieving IEP goals and to prepare the student for a return to in-person school at the beginning of the 2022-23 school year.
Prior to the beginning of the 2022-23 school year, the district must hold an IEP team meeting to determine and clearly describe the student's positive behavioral interventions and supports for the student. The IEP team must review the student's progress during the summer. The district must provide a revised copy of Student H's IEP and a short narrative of any changes to the department for review within 10 days of the IEP team meeting.
Student I: Whether the district ensured the IEP team met periodically, but not less than annually, to determine whether the annual goals are being achieved and revise the IEP, as appropriate.
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)(1). The district acknowledges that due to scheduling difficulties, the annual IEP meeting date for Student I was two days late and was held on May 17, 2022. The district did not timely conduct an annual review of the student's IEP. District staff provided evidence that they have explained this error to the student's parents, and since there was no interruption to the student's services, no student-specific actions are required.
Within 45 days of the date of this decision, the district is directed to create a corrective action plan (CAP) for DPI approval to ensure the district:
- Properly implements IEPs of students with disabilities;
- Properly monitors and reports students' progress toward attaining annual IEP goals;
- Properly conducts reevaluations of a student with disabilities within the required timelines;
- Ensures each Student's IEP team meets IEP periodically, but not less than annually; and
- Properly develops IEPs to address student behavior and communication needs.
The CAP must also include information related to IEP access for all educationally relevant staff; training for all staff on their obligations and the process for how to make a special education referral; how disability-related needs will be addressed in student IEPs; information about documenting any necessary information from the special factors in the program summary and specially designed instruction with sufficient clarity and amount, frequency, location; and a process for ensuring IEP paperwork is timely finalized and provided to relevant staff and parents prior to implementation. The department will engage in ongoing monitoring until all issues are addressed, and the district can consistently demonstrate current compliance with state and special education requirements.
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.