On June 29, 2022 (form dated June 27, 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 below relate to the 2021-22 school year.
Whether the district properly determined a student with a disability required adapted physical education services, including properly conducting standardized assessments.
Special education means specially designed instruction, including instruction in physical education, adapting the content, methodology, or delivery of instruction to address the unique needs of the student that result from the student's disability to ensure access of the student to the general curriculum, so that the student can meet the general education standards that apply to all students. 34 C.F.R. § 300.39. Physical education services, specially designed, if necessary, must be made available to every student with a disability. Further, each student with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled students unless the student needs specially designed physical education, as prescribed in the student's individualized education program (IEP). If specially designed physical education is prescribed in a student's IEP, the public agency responsible for the education of that student must provide the services directly or make arrangements for those services to be provided through other public or private programs. 34 CFR § 300.108. In Wisconsin, specially designed physical education is also called adapted physical education. IEP teams must determine the extent to which the student can access the regular physical education program available to nondisabled peers, in addition to the extent to which physical education is required as specially designed instruction to meet the student's unique needs. OSEP Policy Letter 21-01, May 12, 2021.
An IEP team may add adapted physical education to a student's IEP without an evaluation if there is sufficient information to determine the student's educational needs. What constitutes "sufficient information" in determining whether a student with a disability needs specially designed physical education is an IEP team decision. If the IEP team determines they do not have this information, an evaluation must be conducted using the appropriate tools and strategies. DPI Information Update Bulletin 10.04.
The student who is the subject of this complaint has health-related conditions that result in the student experiencing low muscle tone, fatigue, occasional seizures, and decreased endurance and stamina throughout the school day. The student also has autism and a speech and language impairment that impacts the student's adaptive behavior and communication skills. Throughout the student's school history prior to the events giving rise to this complaint, the student's IEPs included adapted physical education. The student's existing IEP in effect at the beginning of the period of time applicable to this complaint is specifically required as part of the program summary under program modifications that the IEP team meeting in August 2021 to discuss any new medical information, nursing services, and bus transportation. The student's IEP also specifically required the school nurse, physical therapist, adapted physical education (PE) teacher, and the district's director of special education to be part of the IEP team. On August 16, 2021, the student's IEP team met to review the student's IEP in preparation for the student's return to in-person instruction after over a year of virtual instruction. Contrary to the student's IEP, the adapted PE teacher and director of special education were not invited to the meeting and did not attend. The rest of the IEP team discussed the student's health, safety, and bus transportation. The team did not discuss PE or adapted PE. The district did not implement the IEP as written when they failed to include an adapted PE teacher and the director of special education at the August 2021 IEP team meeting as required in the student's IEP.
In October 2021, the district informed the student's parents that the student was due for a three-year reevaluation and consulted the student's parents regarding the need for additional testing as part of the reevaluation. The student's parents responded that they wanted to do whatever was necessary to ensure the district did not reduce the student's services. The parents further explained that the student struggles when unsupported and may need additional support and that sensory needs were a concern and requested an occupational therapy evaluation. The parents gave consent for the occupational therapist to conduct a sensory profile assessment. The student's IEP team met to conduct the three-year reevaluation on December 20, 2021. The occupational therapist shared the evaluation results, which indicated the student has sensory processing challenges, especially sensitivity to sounds, that impact the ability of the student to participate in school. Teachers and related service providers shared the following observations regarding the student's participation in PE: the student works at their own pace when it comes to physical activity; there are many activities the student will do, but often takes themself out of activities and seems to tire very quickly, and the student often needs help to find a group to work with during group activities. The IEP team determined the student's "health problems result in continued challenges with fatigue, decreased endurance throughout the day, avoidance from various environmental stimuli, delayed processing time, inattention, and impulsivity;" that the student continues to meet the criteria for several disability categories; and continues to need specially designed instruction in the areas of social skills, English language arts, and math. The IEP includes documentation that the student "self modifies [their] participation in PE class to conserve energy and reduce frustration." During the complaint investigation, district staff shared that the IEP team talked briefly about PE but did not discuss adapted PE because, in the district's opinion, the student was successful in general PE with modifications made in real-time as needed by the teachers and the student. No modifications are documented in the IEP. During the complaint investigation, the district explained further that an adapted PE teacher was co-teaching the student's PE class with the general PE teacher, and they discussed all the student's needs on a regular basis. The special education teacher also met every other week with the student's PE teachers, as specified in the student's IEP, to see how the student was doing and to discuss any needed modifications.
Although the district provided modifications for all students as part of the general PE class, the student's IEP team should have determined if the student required specific modifications or specially designed physical education to address their unique, disability-related needs. The district failed to properly determine whether the student required modifications or adapted physical education services at the December 20, 2021, IEP team meeting.
On March 21, 2022, the student's PE class took a one-mile walk, and the student informed the parent the student was in "terrible pain" during the walk. The parents emailed the PE teacher and reminded them of the student's medical diagnoses and stated, "this is why [the student] has adaptive PE" and "adaptive PE on consult." The PE teacher responded via email on March 22, 2022, that the teacher was unaware the student had adaptive PE or an adaptive PE consult. The parents requested an IEP team meeting to discuss concerns, and the IEP team met on April 5, 2022. During the meeting, the physical therapist shared that they had observed the student at the beginning of the year having the capacity to look at an activity and find a way to modify it to participate. Later in the year, the physical therapist observed the student moving from station to station in the general PE class but did not appear to make any attempt to complete the exercises or modify them. The physical therapist regularly reminded the student to make modifications as needed and, if the student had concerns, to talk to the PE teacher or email the therapist. The student never emailed the therapist, and the therapist observed that the student participated less and less in PE over time. The IEP team decided to conduct an evaluation regarding whether the student required adapted PE. The IEP team determined additional testing was needed to determine the student's PE needs. The parents gave consent for the Adapted Physical Education Assessment Scale II (APEAS II) to be administered.
- May 16, 2022, the IEP team met to review the adapted PE testing results. The district shared the APEAS II results and acknowledged several subtests were not given according to the test manual, and parts were omitted. Based on the results of this assessment and staff observations, the IEP team determined that the student did not require specially designed instruction in physical education.
In this case, although the IEP team appropriately determined after a review of existing data that additional testing was needed to determine the student's PE needs, the district did not properly conduct the assessment because the APEAS II was not administered in accordance with the test manual. Within 30 days of this decision, the district must properly readminister the APEAS II and reconvene the IEP team to determine if the student requires specially designed instruction in PE or supplementary aids and services and document any needed services in the IEP. The district must provide documentation of this discussion to the department within 10 days from the date of the IEP team meeting. Also, within 30 days, the district must submit to the department for approval a corrective action plan to ensure IEP teams properly consider when a student requires specially designed instruction in PE.
Whether the district properly conducted meetings of the student's IEP team, including ensuring a local education agency (LEA) representative authorized to commit district resources was part of the IEP team and following provisions providing for excusal of members of the IEP team.
The district must ensure the IEP team for each child with a disability includes a representative of the district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of resources of the public agency. 34 CFR § 300.321(a)(4). An LEA representative with the requisite knowledge attended all of the IEP team meetings during the 2021-22 school year. Although a subsequent IEP team meeting was held after the May 16, 2022, meeting to gather more information about the Unified PE class, this is not prohibited under IDEA, and it does not mean that the LEA did not have knowledge about the availability of district resources.
A required member of the IEP team is not required to attend an IEP team meeting, in whole or in part, if the parent of a child with a disability and the district agree, in writing, that the attendance of the member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting. 34 CFR § 300.321(e). The student's physical therapist was invited to the June 1, 2022, IEP team meeting but did not attend. However, as the student's physical therapy services were not going to be discussed, the physical therapist was not a required member of the IEP team. Consequently, the district was not required to follow the excusal provisions and obtain written consent prior to the June 1, 2022, meeting.
Whether the district properly and timely responded to requests from the student's parents to inspect and review the student's special education records.
On June 3, 2022, the parents requested a copy of the student's APEAS II results, including all reports, charts, and formal documentation related to the assessment. On June 5, 2022, the district sent a copy of the APEAS II assessment report. The parent then requested the scoresheet completed during the assessment as they believed it would provide more clarity, including the specific percentile rank and standard score. The teacher responded the same day, explaining it was summer break and they did not have access to the scoresheet at that time, but that all data on the scoresheet had been entered in the APEAS II computer program and were contained on the pdf document the district already provided. On June 7, 2022, the district provided the parents with a copy of the same scoresheet previously provided to the parents. The parents were able to contact the testing company and obtain another scoresheet that provided additional information. When asked during the complaint investigation why the district did not provide this additional scoresheet, the district responded that they did not have it and were unaware that a scoresheet with additional information was available from the testing company. The district properly and timely responded to requests from the student's parents when they provided the scoresheet two days following the parents' request. The district did not withhold any requested records from the parent as the district did not have the desired record in their possession and explained to the parents that they had no further information to provide.
Whether the district improperly made changes to a student's IEP outside of an IEP team meeting.
The student's August 16, 2021, IEP provides when a test is given to the student, for the "appropriate portions to be read aloud." The parents believed a service was removed from the student's IEP in December 2021, when there was a change in the wording of the service from tests to assessments, and they believed the student was no longer having classroom tests read aloud. The parents noticed the wording change when they reviewed the IEPs in the spring. They did not recall changes to this service being discussed at the December 2021 IEP team meeting. The parents then asked the student if tests had been read aloud, and the student reported, "no". A comparison of the two IEPs indicates that "appropriate portions read aloud" was removed from the December 2021 IEP, and there was a change in the wording from tests to assessments. The district explained this shift in wording did not mean only districtwide and statewide assessments were read aloud. The IEP specifies assessments in all classes. The district further explained that anyone who wanted a test read aloud during class would go with the special education teacher in a different area and receive extended time and clarification. The teacher did not force the student to come with the teacher but offered all classroom tests and assignments to be read aloud. The teacher did not keep a log of which students receive tests read aloud, but the regular education teachers observed this service occurring. Like the December 2021 IEP, the student's May 16, 2022, IEP does not specify tests will be read aloud to the student, although according to district staff, this service is offered to the student for every test in each class. Within 30 days, the student's IEP must be revised to clarify when classroom tests will be read aloud so it is clear to the parents, the student, and all who implement the IEP. A revised copy of the student's IEP must be submitted to the department within 10 days from the date of the meeting.
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.