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IDEA Complaint Decision 22-083

On October 17, 2022 (form dated October 16, 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 are enumerated below and pertain to the period of time beginning October 17, 2021.

Whether the district properly developed the individualized education program (IEP) of a student with a disability regarding measurable annual goals and adaptive physical education.

School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student's unique needs, documenting that program in the IEP, and implementing the program articulated in the 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, align special education services to enable the student to advance appropriately toward attaining the annual goals and make progress in the general curriculum and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. Special education, which includes physical education, means providing specially designed instruction to meet the unique needs of students with disabilities. The degree to which a student may require specially designed physical education or regular physical education with adaptations is an IEP team decision. Specially designed physical education is not interchangeable with physical therapy, which is a related service. 34 CFR §§ 300.34(c)(9) and 300.108(c). In Wisconsin public schools, physical education must be provided to all students. Students in grades 9-12 must earn at least 1.5 credits of physical education, and the credits must be earned over three separate years. Wis. Stat. § 121.02 and Wis. Admin. Code PI § 8. However, if a student's IEP team determines a student requires specially designed physical education, those services must be provided to the student even during school years or semesters during which students without disabilities may not receive physical education. 34 CFR § 300.108.

  1. student, currently a ninth grader, has been identified under the disability categories of autism and speech and language. student's IEP team met on November 29, 2021. The IEP notes the student had made progress in reading comprehension, math, and regulation in public spaces (i.e., hallways and the lunchroom). The team included new goals for the student in the areas of speech, reading, English language arts, math, and functional/self-help skills. The student's previous IEP had a stand-alone goal for adaptive physical education (APE). The IEP team decided to shift the student's goal from the previous school year from a stand-alone goal to an objective under the student's functional/self-help skills goal.

The IEP team developed annual goals based on the student's present levels and disability-related needs. The IEP team identified the student as having a most significant cognitive disability, so the student received instruction aligned with the Wisconsin Essential Elements for Language Arts and Mathematics. The student's IEP goals were specific and targeted tasks that were achievable and ambitious based on the student's circumstances. Each goal included a measurable baseline and expected level of attainment. The methods the IEP team chose for measuring the student's progress toward attaining the goals were appropriate to demonstrate the student's progress. The student's parents were advised of the student's progress on a quarterly basis, as required by the student's IEP. The student made consistent progress toward attaining the IEP goals.

The IEP team met again in April 2022 to develop a new annual IEP, in part to plan for the upcoming school year when the student would transition to high school. The team determined the student did not require a physical education class at the beginning of the 2022-23 school year. Following the complainant's request, the student's IEP team reconvened on October 20, 2022, to address concerns about the student's progress and to revisit the IEP team's decision about the student participating in physical education. At the meeting, the IEP team reviewed each of the student's goals, the baselines, the levels of attainment, and the student's progress with the complainant. The goals were appropriate in light of the student's frequent difficulties regulating behavior. In addition, the team members shared how they had been working on ways to help the student demonstrate knowledge, for example, by playing a math song and waiting for the student to answer. Staff shared that the student had made progress on sight words explaining the student had started the year with a baseline of kindergarten-level words and had now mastered half of the first-grade-level sight words. The speech and language therapist shared the student's progress in speech and language, including that the student was initiating conversations that reflected significant progress. The district properly developed the student's IEP regarding measurable annual goals.

During the October 2022 IEP team meeting, the team agreed to revise the student's IEP to include APE at the start of the second semester. Additionally, with the parent's agreement, district staff revised the student's IEP without a meeting on November 29, 2022, so the student could begin receiving specially designed instruction in physical education prior to the start of the second semester. The physical education teacher worked with the student on specialized instruction, including throwing and catching, stretching, and aerobic endurance. The teacher utilized a Google form to document activities with the student and to note student progress after each session. The teacher also used visual aids to foreshadow activities the student would participate in each session. The district properly developed the student's IEP regarding adaptive physical education

Whether the district properly implemented the student's IEP regarding supplementary aids and services and occupational therapy (OT).

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).

At the April 2022 annual IEP meeting, the team noted the student's needs in the area of sensory regulation had increased, and as a result, the IEP team added additional OT time to support the student's transition to high school. Sixty minutes were added for direct observation, consultation, and intervention starting in September, and thirty minutes were added for each quarter for the duration of the IEP. The OT provided supplementary aids and services by using visual models and sensory tools and offering breaks to the student during each session. The OT created video models, visual schedules, visuals for self-regulation, options for sensory breaks, social stories, modified daily schedules, and demonstrations for staff to use to support the student. The OT maintained logs through an online application to document time with the student and submitted an example to the department. The district properly implemented the student's IEP regarding OT.

Several staff members were responsible for providing supplementary aids and services in the student's IEP. Two educational assistants provided one-to-one support throughout the student's day. Each staff person interviewed by the department's investigator demonstrated that they were aware of their responsibilities and described various sensory supports and communication strategies they employed with the student, including a core board of words and pictures and other visual devices.

The complainant was concerned the district was not properly utilizing the student's augmentative and alternative communication (AAC) device. The complainant indicated that after five years of having the device, the student did not know how to use it independently. The student's IEP team discussed the student's use of the device at the April 2022 and October 2022 IEP meetings. The team determined that the device was not effective for the student since the student was not able to use the device in a functional manner without maximum cueing, and the device often was distracting to the student outside of structured speech and language sessions. The district and the complainant agreed the student needed a different device and are in the process of consulting with an outside organization about the student's AAC needs. The district properly implemented the student's IEP regarding supplementary aids and services.

Whether the district failed to initiate an evaluation to determine the student's eligibility for physical therapy.

At the October 20, 2022, IEP meeting, the complainant requested that the student be evaluated to determine whether or not the student required physical therapy. This was the first time the complainant raised this concern with school staff. The district initiated an evaluation to consider physical therapy, and the complainant gave consent for the evaluation on November 15, 2022. The evaluation is currently in process. The district properly initiated an evaluation to determine the student's eligibility for physical therapy.

Whether the district Improperly utilized seclusion and/or physical restraint with the student.

Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Wisconsin law prohibits the use of seclusion except in very limited circumstances where a student's behavior presents a clear, present, and imminent risk to the physical safety of students and/or school staff, and it is the least restrictive intervention feasible. If seclusion is used, constant supervision of the student must be maintained, either by remaining in the room or area with the student or by observing the student through a window that allows the staff person to see the student at all times; the seclusion room or area must be free of objects or fixtures that may injure the student; the duration of the seclusion must be only as long as necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others; and no door connecting the seclusion room may be capable of being locked. Wis. Stats. §§ 118.305(2) & 118.305 (3).

The student's IEP requires a "separate space for learning that can be adjusted for sensory needs" to be offered to the student daily. The complainant raised concerns about the room, a separate space inside the larger special education classroom. The complainant was concerned that the space did not have a window other than the window and the door and that use of the room might, at times, be inappropriate and affect the student's emotional well-being. Interviews with staff confirmed the room was not used for seclusion. The student is able to enter or exit the small room whenever the noise and commotion of other students become overwhelming. The student uses the room for breaks or when the student needs to rest or concentrate without distractions. The room includes a beanbag and a weighted blanket. There is a window in the door, and there is no lock on the door. This room was never used for seclusion; rather, it is an option that the student can enter and exit freely. The complainant did not raise concerns about the potential use of physical restraint with the student, and district staff and records confirm there were no incidents of physical restraint. The district did not improperly utilize seclusion and/or physical restraint with the student.

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.