On August 10, 2022 (form dated August 7, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### School District. This is the department’s decision regarding that complaint. The issues are whether the district, beginning August 10, 2021, improperly made changes to the individualized education program (IEP) of a student with a disability outside of an IEP team meeting; properly provided the student’s parent prior written notice of changes to the student’s IEP prior to implementation; properly developed the student’s IEP regarding parent concerns, occupational therapy, and measurable annual goals; and properly implemented the student’s IEP regarding the use of fidgets.
Whether the district improperly made changes to the IEP of a student with a disability outside of an IEP team meeting.
Districts may make changes to a student’s IEP after the annual IEP team meeting, either through an IEP team meeting or upon agreement of the parent and the district; the district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). The department has developed a model form, known as form I-10: Notice of Changes to IEP Without an IEP Team Meeting, for this purpose. Under Wisconsin law, the IEP team must convene an IEP team meeting in order to determine a change of placement for a student. Wis. Stats §§ 115.78(2)(C); 115.79. It is generally considered a change in placement when an IEP team changes the amount of time the student spends in the general education environment. Due to hardships created by school closures related to the coronavirus pandemic, the department temporarily allowed districts to, with parent agreement, utilize the 1-10 process to make placement changes outside of an IEP team meeting. This temporary exception was in effect during the time schools were most impacted by the pandemic and ended at the beginning of the 2022-23 school year.
The student’s IEP team met to conduct an annual review of the IEP on January 5, 2022. The IEP included specially designed instruction (SDI) in math twice per week for 40 minutes per session in a special education environment. It also included SDI in written language twice per week for 15 minutes per session in a special education environment. In February 2022 and again in May 2022, after communicating with the student’s parent, the district created two I-10 forms to modify the student’s IEP. In the February 2022 document, the district increased the student’s SDI in math from four to five days per week in a special education environment, and written language from two to three days per week in a special education environment. The length of the SDI sessions remained the same. This change resulted in an increase in the time the student was removed from the general education environment and, as such, was a change in the student’s placement. In the May 2022 document, the district decreased the number of sessions of the student’s SDI in written language from three days per week to two but increased the length of the sessions from 15 minutes to 20 minutes. This change was also a change of placement. Given that the department’s exception to the use of the I-10 forms to make placement changes was in effect when the district made these changes, the district properly changed the student’s placement.
Whether the district properly provided the student’s parent prior written notice of changes to the student’s IEP prior to implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the LEA proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the LEA, an explanation of why the LEA proposes or refuses to take the action, and a description of other options that the IEP team considered, and the reasons why those options were rejected. 34 CFR § 300.503. The IEP and placement page may be used to provide prior written notice. However, a draft IEP is insufficient to serve as prior written notice.
The complainant stated that on multiple occasions following changes to the student’s IEP, the district did not provide a final copy of the IEP within a reasonable time to review it prior to its implementation date. Based on information received from both the complainant and the district, following IEP team meetings on November 3, 2021, and January 5, 2022, the district did not provide the parent copies of final IEPs prior to their implementation dates. No student-level corrective action is required for this issue because although the notices were late, the parent has received both IEPs.
Whether the district properly developed the student’s IEP regarding parent concerns, occupational therapy (OT), and measurable annual goals.
School districts must appoint an IEP team for each student with a disability for whom they are responsible. In developing the student’s IEP, the IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and describe the special education services it will provide to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. Parents are members of their children’s IEP teams, and each IEP team must consider the parents’ concerns. 34 CFR §§ 300.324. The IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the child, including the projected date for the beginning of the services and the anticipated duration of the services. All services must be clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 34 CFR §§ 300.320(a)(4) and (a)(7).
The complaint raises several issues regarding the development of the student’s IEP, including consideration of parent concerns. All of the student’s IEPs in effect during the time frame of this complaint include statements documenting consideration of parent concerns, with the exception of the November 3, 2021, IEP. In this IEP, the section documenting parent concerns is left blank. The district did not properly document parent concerns in the November 3, 2021, IEP.
The complaint also raises concerns regarding the provision of OT. The student’s January 2021 IEP included a finite number of OT sessions which were completed prior to the next IEP team meeting in November 2021. During the November 2021 IEP team meeting, the team discussed occupational therapy and determined the student did not require direct OT services but that consultation should be provided. The service is described as occurring “quarterly, when new staff begin working with [student] and upon teacher or student request.” Statements describing special education services to be provided upon teacher or student request do not make clear the district’s level of commitment of resources and do not clearly describe the circumstances under which the service will be provided. The district did not properly develop the student’s IEP regarding OT.
The complainant raised concerns regarding the clarity and completeness of the student’s annual goals. In the student’s IEPs in effect during the time period relevant to this complaint, the annual goals did not consistently include descriptions of the expected levels of attainment that corresponded to the baseline measurements. Given the baseline and level of attainment measurements did not match, the IEP team cannot appropriately monitor the student’s progress towards attaining the goals. The district did not properly develop the student’s IEP regarding annual goals.
Whether the district beginning August 10, 2021, properly implemented the student’s IEP regarding the use of fidgets.
The supplementary aid and services section of the student’s IEPs contained a list of resources designed to provide the student with tools and strategies to help them focus during class. Fidgets or thinking putty are listed as one of these strategies in three of the four IEPs. The complainant raised concerns that the student was not able to access fidgets or thinking putty during the school day. Staff acknowledge that there were a few occasions when staff took away the student’s fidgets or thinking putty when the use of those tools became a distraction in class. When the student’s parent raised concerns about the student not having access to these tools, staff took appropriate steps to ensure the student had continuous access to them moving forward. The district is currently properly implementing the student’s IEP regarding the tools the student may access in order to help them with their focus and concentration during class.
As a student-specific corrective action, within 20 days of the date of this decision, the district must reconvene the student’s IEP team to clearly describe the amount and frequency of the OT consultation service and revise the annual goals to ensure they have corresponding measurements for the baselines and levels of attainment. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
In addition, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP) which includes training to ensure that prior written notice is properly provided, parent concerns are properly documented, annual goals have corresponding measurements for the baselines and levels of attainment, and services include appropriate statements of amount and frequency.
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.