You are here

IDEA Complaint Decision 22-074

On September 22, 2022 (form dated September 21, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District (district). This is the department's decision regarding this complaint. The issues identified are included below and pertain to the 2022-23 school year:

Whether the district properly developed the individualized education program (IEP) of a student with a disability regarding documentation of parent concerns and inclusion of annual goals and services aligned with the student's current levels of educational performance designed to address the student's disability-related needs.

School districts meet their obligation to provide a free, appropriate public education (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 § 300.324. In developing the student's IEP, the IEP team must consider the concerns of the student's parents for enhancing the education of their child. 34 CFR § 300.320; Wis. Stat. § 115.787 (3)(a). When developing the IEP for a student with a disability, the IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE.

The student who is the subject of this complaint enrolled in the district, which is the student's resident district, in December 2021. For several years before December 2021, the student attended a virtual charter school provided by another school district through open enrollment. The IEP from the previous district included a list of the student's medical diagnoses, including an anxiety disorder, from a comprehensive private neuropsychology assessment obtained by the student's parents in the fall of 2021. After the student enrolled in the school district, the student's resident district IEP team met to develop the student's annual IEP on December 15, 2021. The resulting IEP did not include the list of the student's medical diagnoses but referenced the neuropsychology report and mentioned other medical conditions but did not mention the student's anxiety disorder. The student's parent was not satisfied with the IEP and felt it did not reflect a true picture of the student's disability, given the extensive information in the neuropsychology report. The student's parents chose to have the student attend a virtual school offered by the school district for general education classes. The student's IEP included special education services to be delivered at the district school. The student attended the virtual school for the remainder of the 2021-22 school year. However, the student's parent continued to express dissatisfaction with the IEP, and the student did not attend the in-person special education services the district offered.

The student's IEP team reconvened to review and revise the student's IEP for the 2022‑23 school year on September 6, 2022. The student's private mental health therapist attended the IEP team meeting and mentioned that the student had anxiety. However, the district had not received the entire neuropsychology report or other formal documentation of the student's anxiety disorder at that time, so the IEP mentions briefly that the student experiences anxiety but does not list the actual medical diagnosis. The IEP includes supplementary aids and services that the district contends address the student's needs resulting from anxiety. The district received documentation of the student's medical anxiety disorder from the student's therapist on September 28, 2022. The district has expressed willingness to include this information in the student's IEP moving forward but has not revised the student's IEP due to difficulties scheduling an IEP team meeting. Meanwhile, the student has attended both virtual school and in-person special education services during the 2022-23 school year. Given these unique circumstances and the efforts from all parties to find a mutually agreeable time for the IEP team to meet, it is reasonable that the school district has not yet updated the student's IEP. IEP team meetings are scheduled for December 2022. The district properly developed the student's IEP regarding parent concerns.

The student's IEP includes a number of supplementary aids and services designed specifically to address anxiety issues during the student's transition to in-person learning. The student can take additional breaks during in-person instruction and contact the parent anytime. The student's parent raised concerns that the services the student receives do not adequately meet the student's disability-related needs, given the gap between the expectations of the student's general education program at the virtual school and the student's current skills. The IEP describes the student's present levels of achievement in reading and compares the student's levels with the expectations for grade-level peers. The student's academic skills in reading and math are significantly below that of peers. The IEP includes supplementary aids and services to assist the student in accessing and participating in the general education curriculum, including visual aids, text-to-speech, and speech-to-text, clarification of instructions, frequent checks for understanding, noise buffers, and reduced visual distractions. The IEP also indicates that parents and virtual school staff will collaborate on assignment and assessment modifications, with a frequency described as "when teacher or parent feels assignments needs an accommodation…" This statement does not clearly describe the nature of the modifications, nor does the frequency provide specificity about which student's assignments need to be modified or in what ways. The statement does not provide a clear commitment to district resources, and this lack of specificity has contributed to disagreement and confusion between the parent and the virtual school staff. The district is directed to review and clarify the description of supplementary aids and services to ensure the services are described clearly and have an understandable amount, frequency, location, and duration appropriate to each service. These corrections can be made during the student's upcoming IEP team meeting. The district is directed to submit a copy of the student's IEP to the department within 10 days of the IEP team meeting with the corrections clearly indicated.

On three occasions during the time period pertinent to this complaint, the district has requested to conduct a reevaluation of the student to better discern the student's disability-related needs and obtain additional, current baseline data to inform the IEP team of the student's present levels. The student's parent has not provided consent for the reevaluation, noting that the student's previous district conducted a reevaluation in 2021. The information in the report from the student's private neurological assessment is extensive. The parent has expressed to the department's investigator that they believe the purpose of the reevaluation is not clear, and given the student's anxiety, they do not want to put the student through the stress of an additional reevaluation. Between the September 6, 2022, IEP team meeting and the issuance of this complaint, the district has provided several weeks of in-person instruction to the student and will have updated data based on the student's progress. This information will provide the student's IEP team with current baseline data upon which to update the student's annual goals and services.

Whether the district properly responded to a parent's request for IEP team meetings.

A parent may request an IEP team meeting at any time, and the district should grant any reasonable request for an IEP team meeting. If the district denies the parent's request for an IEP team meeting, the district must provide the parent with a notice of refusal in writing and include an explanation of why the district refuses to grant the request. 34 CFR § 300.503.

On several occasions during the first semester of the 2022-23 school year, the parent made requests to district staff for IEP team meetings. However, until recently, the district and parent have been unable to establish a mutually agreeable time to meet. The first request was on September 12, 2022. The district responded that they were willing to hold a meeting and asked the parent to send some dates that would work. The parent responded by sending three dates (September 29, 2022, October 6, 2022, or October 13, 2022) with the time of 10:30 a.m. - 12:30 p.m., as the parent wished to have the student's private therapist attend, and these dates and times reflected the therapist's availability. The district responded that staff were unavailable during those dates and times and proposed four alternative dates (October 6, 2022, from 7:30-8:30 a.m., October 1, 2022, from 7:30-8:30 a.m., and October 28, 2022, from 7:30-8:30 a.m. The district also offered to host the meeting virtually to allow more flexibility for the therapist to attend and, with the parent's consent, to speak directly with the therapist to coordinate a meeting time. On October 3, 2022, the student's parent emailed district staff, declining to provide consent for the district to speak directly with the therapist, refusing to meet virtually, and rejecting all the district's proposed meeting times. The parent also indicated they would send a list of possibilities further out so the district could arrange for staff to attend the meeting. On October 5, 2022, the district contacted the parent again, and on October 6, 2022, the parent responded, offering December 5, 2022, from 1:00-2:00 p.m. and December 12, 2022, from 1:00-2:00 p.m. The district agreed, and the IEP team is scheduled to meet on both December dates. While ideally, it would have been better to arrange meetings more promptly, given the circumstances, the district has been responsive, and the delay was not unreasonable. The district properly responded to the parent's requests for IEP team meetings.

Whether the district properly implemented the student's IEP regarding specialized transportation.

Specialized transportation is considered a related service. Each student's 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 student's IEP includes transportation from the school back home after the student's morning in-person services at the school, with the understanding that the student would be able to take the regular school bus from home to school. The student's parent believed the student's anxiety would prevent them from taking the regular school bus, so the parent has transported the student both to and from school since the beginning of the school year. The district has since received documentation from the student's therapist indicating that the student cannot be transported via the regular school bus. The district has emailed the parent a transportation reimbursement agreement, and the parent has not signed and returned it to the district to allow reimbursement to begin. Given these unique circumstances, the district's actions regarding the student's transportation have not been unreasonable. At the upcoming IEP team meeting, the district and parent should clarify the transportation arrangements in the student's IEP, including making arrangements for past and ongoing reimbursement to the parent for providing transportation.

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.