On July 15, 2022 (form dated July 12, 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 are whether the district properly implemented the individualized education program (IEP) of a student with a disability regarding summer school services and whether the district properly implemented the student's IEP regarding a communication device.
The student that is the subject of this complaint is an elementary school student with autism. The student is nonverbal and communicates through vocalizations, gestures, sign language, and visual supports, including visual schedules and an augmentative and alternative communication (AAC) device via an application on a tablet computer. The student's IEP requires visual supports at all times throughout the school day to assist the student in communicating wants and needs. The IEP provides for adult support throughout the school day for classroom transitions, bathroom, lunch, recess, and basic daily routines, including drop off and pick up, play, breaks, and other learning opportunities.
During the second term of the 2021-22 school year, the student switched to a new AAC program that permits more advanced communication that can grow with the student. Starting a new program frequently required staff to provide maximum hand-over-hand assistance to the student. The new AAC program factored into the IEP team's decision to add extended school year (ESY) services for the student during the summer following the 2021-22 school year.
Whether the district properly implemented the IEP regarding summer school services.
Summer school is a permissive program typically operated on a set schedule for a number of weeks during the summer. A school board may elect to operate summer classes or to permit pupils to attend summer classes operated by another district on a tuition basis if the school district of operation will accept them. Wis. Stat. § 118.04. The compulsory attendance requirement does not apply to summer classes, and local educational agencies (LEAs) are not required to provide a summer school program.
Extended School Year (ESY) services are required for special education and related services provided beyond the limits of the school term, in accordance with the student's IEP, and at no cost to the parents. LEAs cannot limit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of the services. LEAs are required to provide ESY services to a student with a disability when the student requires these services to receive a free and appropriate public education (FAPE). 34 CFR § 300.106. If the parent or any other member of the IEP team expresses a desire to discuss the student's need for ESY, the IEP team, including the parent, must determine, on an individual basis, whether the student requires ESY services in order to receive FAPE. IEP teams must ensure that students receiving ESY services are educated in the least restrictive environment (LRE). 34 CFR § 300.114. The ESY services must be tailored to the unique needs of the student and may not be based solely on the availability of services during the summer. 34 C.F.R. § 300.106.
Because ESY programming emphasizes preventing regression and recoupment problems, ESY services may differ markedly from the services provided to a student during the school term. Department Information Update Bulletin 10.02. The ESY services may or may not be school-based. ESY special education and related services may be provided in the district's summer program by staff who teach summer classes. The staff must be appropriately licensed, and the services must be provided in a manner consistent with the student's IEP. The specific ESY services provided, including the amount and duration of the services, must be based on the student's individual needs.
The student has attended summer school in the district for several years. During the previous 2020-21 summer school program, the student's one-to-one aide from the 2020-21 school year continued to assist the student. No significant behavioral challenges occurred. This summer, the student participated in the district's summer school program after the 2021-22 school year, which took place from 8 a.m. to 11:45 a.m., four days per week, for a total of five weeks. ESY services involved two components. The first was instruction in task completion to work on the student's ability to follow a schedule, maintain tasks, and have access to reading and math instruction, to take place for 25 minutes daily, four days per week. The second was 20 minutes of instruction with a speech-language pathologist (SLP) one time per week. ESY services were provided in a special education environment.
The district attempted to employ the aide that worked with the student during the 2021-22 school year but instead assigned an aide the student did not know. Both ESY instructors were new to the student. The district reported that the first week was challenging because of unfamiliar staff. On the first day, the aide sustained injuries and refused to continue to work with the student. The district assigned another aide that began working with the student on the second day with support from the district's summer school special education coordinator.
The student's parents raised concerns that a peer found the student alone in a bathroom early in the summer. The student's IEP states that the student can use the bathroom and wash hands independently. However, staff must supervise for occasional verbal cues to flush or wash or to redirect if the student plays with water or toweling. From reviewing the IEP and speaking with the administration, district staff understood bathroom supervision to mean waiting right outside the bathroom door and intervening when necessary. Staff reported that the student was always supervised and attended to. The district provided one-to-one adult support as written in the IEP.
As staff learned how to communicate with the student and respond to distress, early mornings were successful. However, district staff noted a pattern of dysregulation later in the mornings. The student often communicated the desire to go home. If staff said a parent was on the way, the student seemed relieved. Staff felt like they were at risk of creating an association between dysregulation and getting to go home. They were concerned that school was becoming a negative experience for the student.
District administration met with the parents and changed the student's schedule to 8 a.m. to 10 a.m. for the final two weeks of the program. The parents disagreed with the schedule change. The district wanted to ensure the student received all ESY services while the student was regulated. The student continued to start each morning with task completion. Speech therapy was moved to earlier each Wednesday. The district did not make any changes to the amount or duration of the ESY services that would have required an IEP team meeting or IEP team agreement.
From the beginning of the summer program to the end, district staff observed no regression in the areas of concern that prompted ESY: task completion, mathematics, reading, and communication skills. The district provided ESY and support services as described in the IEP and properly implemented the IEP as written regarding ESY services.
Whether the district properly implemented the IEP regarding a communication device.
LEAs meet their obligation to provide FAPE to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that are reasonably calculated to enable the student to make progress appropriate in light of the student's circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.22; Wis. Stat. § 115.787. The IEP team must determine the special education services (including supplementary aids and services, specially designed instruction, related services, and program modifications or supports for school personnel) needed to meet the student's disability-related needs and allow the student to make progress in the general education curriculum.
The IEP team must consider whether the child needs assistive technology devices and services. The IEP must include a statement of the special education services to be provided to the student that specifies the frequency, amount, location, and duration of those services. The services in the IEP must be stated, so the level of the LEA's commitment of resources is clear to all involved in developing and implementing the IEP. 34 CFR §§ 300.320, 300.324; Wis. Stat. § 115.787.
The student's IEP provides access to visual supports at all times throughout the school day, including picture supports and an AAC device for choice-making and communication. The student uses two devices from the same manufacturer, one for AAC and one to engage in academic applications, breaks, and non-AAC communication. On the first day of summer school, the district only provided the device for academics, and the district had inadvertently left the AAC device at the student's home elementary school. The district's summer school special education coordinator brought the AAC device to the summer school program location for the second day, and the device was available to the student throughout the remainder of the program. The student had access to the AAC device in time for all ESY services. The district properly implemented the IEP regarding a communication device.
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, 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.