On June 21, 2022 (form dated June 16, 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 issue identified is whether the district, during the 2021-22 school year, properly implemented the individualized education program (IEP) for a student with a disability regarding adaptive physical education.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing and implementing an IEP that meets the student's unique disability-related needs. 34 CFR §§ 300.323(c)(2) & 300.324. Special education, which includes physical education, means providing specially designed instruction to meet the unique needs of students with disabilities. Specially designed instruction means adapting, as appropriate to the needs of an eligible student under this part, the content, methodology, or delivery of instruction to address the unique needs of the student that result from the student's disability and ensure access to the student to the general curriculum, so that the student can meet the educational standards that apply to all students. 34 CFR § 300.39 (b)(3). The degree to which a student may require specially designed physical education or regular physical education with adaptations is an IEP team decision. Specially designed physical education is not interchangeable with physical therapy, which is a related service. 34 CFR §§ 300.34 (c)(9) & 300.108 (c). Physical education is a component of the educational program required for all children.
The student who is the subject of this complaint transferred into the district from another in-state school district at the beginning of the 2021-22 school year with an IEP that included, among other services, adaptive physical education (APE). The district adopted the annual goal related to APE from the previous school district's IEP, which focused on demonstrating age-appropriate gross motor skills in a physical education class, with an emerging mature pattern in 50% of opportunities. Several objectives were also included, identifying specific skills for the student to improve, such as throwing, hand manipulation skills with various balls and implements, skipping/hopping, and running faster. The IEP required the district to provide the student APE in a regular physical education class for 30 minutes 3 times per 6-day cycle. The district assigned the student to a class with three physical education (PE) teachers, two of whom were certified in APE, and 75 students. The student had 1:1 adult support at all times, including in PE, from an educational assistant. All of the teachers were appropriately licensed to provide adaptive physical education to the student.
The student's IEP team met on October 20, 2021, to conduct the student's annual IEP. District staff presented a lengthy update of the student's performance in physical therapy and APE and emphasized the student's positive participation in PE. The student was engaged in class and was willing to find a way to perform class tasks. The update mentioned the student hitting a ball off a tee and trying to do jumping jacks, push-ups, and sit-ups. The student was always engaged in class and tried hard without getting frustrated. The IEP resulting from the October 20, 2021 meeting did not continue the APE goals from the previous district. Instead, the team included a goal to address gross motor needs by increasing strength and stability as measured by several objectives, including balancing on one leg, completing sit-ups, and hopping on one leg. While one of the objectives specified increasing the student's independence in PE class, the other two objectives were not specific to PE and were ultimately addressed by the physical therapist.
The district reviewed and reported to the student's parents the student's progress toward achieving the gross motor goal on two dates during the school year. The reports were completed by physical therapy staff, not the student's APE teachers. On November 29, 2021, district staff provided an anecdotal note stating the student was making progress to reach the annual goal and was working hard on strength, balance, and coordination in PT. Staff did not provide specific data consistent with the measurement provided in the annual goal and its objectives. On March 4, 2022, the progress report provided data, but the data did not match the activities described in the objectives, nor were they consistent with the measurement as expressed in the objectives. Given that PT staff provided the progress report information, the progress reports did not supply the student's parent with information regarding the student's progress in APE.
The student's IEP team met on May 4, 2022, to develop the student's annual IEP. Documentation from the meeting includes an anecdotal note indicating the student did not meet the annual gross motor goal but continued to make progress toward benchmarks without providing data. Documentation from the same meeting includes comments about the student's functional performance in PE, indicating "… [the student] is a fantastic participant in Fitness. [The student] is consistently involved in all activities…when it comes time for individual skill work having one-to-one support in class is essential." To clarify the skills the student would work on in APE, the team added a specific APE goal focusing on balance and lower extremity strength.
During the complaint investigation, the student's parent told the department's investigator that the parent often served as a substitute staff member in the student's PE class. This provided the parent the opportunity to observe the services the student was provided. The student's parent did not observe the PE teachers providing any specially designed instruction and asserted the PE teachers relied 100% on educational assistants for the students during PE class. After observing the same situation multiple times during the school year, the student's parent came to believe that, in reality, the student received no APE instruction.
When asked for documentation about the provision of APE to the student, district staff provided a list of examples of activities and modified equipment they assert were provided to the student during APE. However, the district was not able to describe or provide a record of which activities or equipment were used to provide instruction during a particular time period. According to the APE teacher, activities marked with an asterisk on the list were specifically related to the student's goals. However, the list does not indicate the time period during which it was provided, nor does it include information about the student's performance in the activity. Without some indication of the specific instruction provided to the student, the list and the asterisks are not sufficient to demonstrate that the staff provided specially designed APE services to meet the student's unique needs. The district did not properly implement the student's IEP regarding APE. Within thirty days of this decision, the district must reconvene the student's IEP team to determine whether the student requires compensatory services due to the district's failure to consistently provide APE during the 2021-22 school year. The district is directed to submit a copy of the IEP to the department within 10 days of the IEP team meeting. In addition, the district is required to develop and submit to the department for approval a corrective action plan to ensure the district properly provides APE services when required to address a student's needs, including developing IEPs clearly identifying each student's individual learning goals or objectives for APE. This plan must ensure district staff responsible for implementing IEPs know how to document and properly report the progress students are making toward individual annual APE goals.
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