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IDEA Complaint Decision 22-062

On August 10, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District. This is the department’s decision regarding that complaint. The issues identified below occurred during the 2021-22 school year.

Whether the district properly implemented the individualized education program (IEP) of a student with a disability regarding the student’s virtual learning plan, provision of specially designed instruction, and adult support during in-person instruction.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an IEP that meets the student's unique needs and by implementing the special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2). When a student transfers between Wisconsin school districts, the receiving district, in consultation with the parent, must provide FAPE without delay, including special education and related services comparable to those described in the most recent IEP developed by the sending district until the receiving district adopts the child’s IEP (including the evaluation and eligibility determination) from the previous district and provides the parents with an updated placement notice. 34 CFR § 300.323(e) or develops a new IEP.

The student who is the subject of this complaint transferred to the #### School District. On August 31, 2021, (The School District) adopted the student’s evaluation and IEP from the previous school district as documented on their “(The School District) Transfer Student Checklist.” The district did not provide the parent with an updated placement notice. The student’s parent chose virtual instruction for the student, an option available to all students in the district. The student’s adopted IEP included virtual specially designed instruction (SDI) in pre-readiness skills 20 minutes per day; SDI in speech and language 15 minutes twice per week; and occupational therapy 15 minutes once a week. The student began receiving virtual instruction from (The School District) on September 2, 2021. The complainant alleges the district failed to provide the special education services specified in the student’s IEP. The parent explained that the speech and language pathologist and occupational therapist were sometimes late starting their virtual sessions with the student and that the special education teacher did not provide any SDI during virtual learning time. During the complaint investigation, district staff acknowledged the virtual sessions of speech and language instruction and occupational therapy were sometimes started later than scheduled with the parent. However, the service providers keep logs documenting the services they provided to the student, and the total number of minutes of services required by the IEP was always provided. District staff also acknowledged there was confusion among staff as to who was to provide the SDI in pre-readiness skills 20 minutes per day during virtual learning. District administrators assigned the responsibility to the student’s special education teacher, but the special education teacher did not understand their responsibility and thought the regular education teacher was providing the virtual instruction. The district expects teachers providing virtual instruction to document the services provided. The district does not have documentation to indicate the student received SDI in pre-readiness skills 20 minutes a day during the time the student was receiving virtual instruction, and no one in the district can verify it occurred. The district did not properly implement the student’s virtual learning plan specified in the IEP. Within 30 days of this decision, the IEP team must reconvene to determine compensatory services to address the missed SDI in pre-readiness skills from September 2, 2021, to March 7, 2022. The district must also develop a corrective action plan to ensure district staff are aware of their responsibilities when a student is enrolled in virtual learning and to ensure parents are provided an updated placement notice when the district adopts a transfer student’s IEP. The district is directed to submit a copy of the revised IEP with the compensatory services documented in the program summary and the corrective action plan to the department for approval prior to implementation.

On February 25, 2022, the IEP team met for the purpose of determining the student’s continuing eligibility and placement and developing the student’s annual IEP. The IEP team developed an IEP for the student that included in-person SDI in school routines one time daily for 30 minutes; SDI in social skills/behavior development one time daily for 20 minutes; SDI in communication skills three times weekly for 20 minutes from the speech and language pathologist, three weeks per month; and occupational therapy one time weekly for 30 minutes. The student began attending school in person on March 8, 2021. The complainant alleges the student did not receive in-person specially designed instruction in speech and language the first week of each month. This is, however, consistent with the number of weeks documented in the IEP; the student was to receive three weeks of speech and language therapy per month. During the complaint investigation, district staff acknowledged the specially designed instruction in school routines and social skills/behavior development was not always provided by a special education teacher. According to staff interviewed during the complaint, the special education teacher substituted in regular education on a weekly basis and would either assign the special education aide to provide the SDI, or the teacher would provide the SDI during their planning time. The special education teacher did not keep documentation as to when the special education aide provided the specially designed instruction. A special education aide who works under the direct supervision of a licensed special education teacher in a district may support the lesson plan directly introduced to a student by the licensed special education teacher, but a special education aide cannot be assigned teaching duties such as delivering instruction. Aides may not serve as substitute teachers. PI 34.01(4). The district did not properly provide specially designed instruction. Since the district is not able to determine when the special education aide was asked to provide SDI, the district must hold an IEP team meeting to consider whether compensatory services are required for the time the student was to receive in-person SDI in school routines and social skills/behavior development between March 8, 2022, and June 5, 2022. Include documentation of the consideration of compensatory services in the student’s revised IEP program summary submitted to the department. The district must also include steps in its corrective action plan to ensure special education aides do not deliver specially designed instruction to students with disabilities.

The student’s IEP adopted at the beginning of the school year by (The School District) required the student to receive adult support for safety, communication, and self-care from the time the student arrived at school to dismissal. The student did not attend school in person during the period of the adopted IEP. The IEP developed on February 25, 2022, did not include this service. During the IEP team meeting, the IEP team discussed the need for continuous supervision, and the district informed the parent that the student would never be unattended while in school, as is the case for all students. The parent asked if one female adult could be assigned to the student, and the district reiterated there would always be an adult with the student, but it might not always be the same person, and it might not be a female. The IEP team did not include adult support in the student’s IEP because they believed the student did not require additional support beyond what is typically provided to all students. The photographs and videos submitted as part of this complaint do not establish that the student was left unsupervised. The district properly implemented the student’s IEP regarding the provision of adult support during in-person instruction.

Whether the district properly developed the student’s IEP regarding specialized transportation.

Related services include transportation required to assist a child with a disability to benefit from special education 34 CFR § 300.34. Transportation includes travel to and from school and between schools; travel in and around school buildings; and specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability. 34 CFR § 300.34(c)(16). Travel training is specially designed instruction to enable a student with a disability to develop an awareness of the environment in which they live and learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, and in the community). 300 CFR § 300.39(b)(4).

During the February 25, 2022, IEP team meeting, the parent expressed concern about escorting the student to school. The IEP includes documentation that the student has delays in receptive and expressive language and adaptive skill development that impact their ability to follow directions and routines and transition between activities without becoming upset. The district agreed to assist with walking the student while the student transitioned back to in-person schooling. The service is not documented in the IEP. This assistance was provided for a two-week period prior to spring break. On April 4, 2022, an advocate emailed the district on behalf of the parent and asked about the student receiving additional assistance with getting to school. The district responded via email, “specialized transportation is not an option when the need is a result of having younger children and a parent cannot walk a child to school.” They suggested the parent work with community support instead. During the complaint investigation, district staff did not recall the parent expressing concerns at an IEP team meeting regarding the student’s safety or elopement while walking to school. The advocate emailed the district on May 5, 2022, and requested an IEP team meeting on behalf of the parent, but no meeting was scheduled. The IEP team must meet within thirty days from the date of this decision to address the parent’s concern regarding the student’s safety or elopement while walking to school and determine if the student has a disability-related need that requires specialized transportation or other assistance with traveling to and from school. The IEP team must document the consideration and any needed services in the IEP.

Whether the district properly determined whether the student was eligible for extended school-year services.

Each school district must ensure that extended school year services are available as necessary to provide a free appropriate public education (FAPE). Extended school year services must be provided only if a student’s IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student. 34 CFR § 300.106.

The student received extended school year services (ESY) prior to transferring to (The School District). At the February 11, 2022, IEP team meeting, a district staff person mentioned ESY as a possibility for making-up special education services if it was determined services were not provided during virtual learning.

If ESY services are an issue raised by a parent or another IEP meeting member, the IEP team must determine whether the child requires ESY services in order to receive FAPE. IEP teams should engage in a multi-factored determination of eligibility for ESY services, including “the likelihood of regression, slow recoupment, and predictive data based upon the opinion of professionals.” Todd v. Duneland Sch. Corp., 229 F.3d 899, 907 (7th Cir. 2002). A student may receive both ESY and compensatory services. These services have different standards and purposes and are not mutually exclusive. ESY services are provided to a student with a disability beyond the normal school year and in accordance with the student’s IEP. IEP team determinations regarding ESY services are prospective and not intended to make up for past denials of FAPE. Compensatory services are additional special education and related services to address the needs of the child that are intended to remedy a failure or inability to provide appropriate services. OSEP QA 21-06 (September 30, 2021). In this case, the IEP team member was suggesting a possible need for compensatory services, although they inadvertently referred to the service as ESY. No other IEP team member raised the issue of ESY services. If an IEP team member believes ESY should be considered in the future, they may request an IEP team meeting to consider the need.

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 or contact the special education team at (608) 266-1781.