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IDEA Complaint Decision 23-027

On March 16, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### (District). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2022-23 school year, properly implemented the individualized education program (IEP) of a student with a disability regarding supplementary aids and services.

School districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP 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. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78[2]; Endrew F. v. Douglas County School District, 137 S.Ct. 988. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.

The student who is the subject of this complaint had an IEP in effect to begin the 2022‑23 school year that included supplementary aids and services to allow the student to make progress in the general education curriculum and towards their annual IEP goals. These supports included preferential seating, access to a separate setting for testing or when distracted in the regular education setting, and the ability to take breaks. Interviews with school staff confirm that the student rarely needed access to a separate setting for a break, and this support was used infrequently.

The student’s IEP team reconvened on December 15, 2022, to develop the student’s annual IEP. The IEP team revised the supplementary aids and services to include receiving adult or peer-created note sheets, access to a separate setting for testing or when distracted in the regular education setting, preferential seating, the ability to take breaks when becoming unfocused, receiving visual supports during independent work time, and proximal adult support in science and social studies, or when working independently.

Although staff demonstrated they were making efforts to implement the student’s supplementary aids and services, several of the services are written so that the amount of time committed to each service and the LEA’s commitment to resources are unclear. All services must be described in the IEP so the level of the LEA’s commitment to resources is clear to the parents and other IEP team members. Specific objective criteria should be used to describe when a particular service will be provided. This information makes it clear when the services must be provided and for how much and how long. Phrases such as “the student will have access to the special education environment” do not make clear whose decision it will be for the student to change environments and when that decision should be made. The phrase “proximal adult support” does not make clear what type of support will be provided or for how long. Due to the IEP’s unclear descriptions, the implementation of the student’s IEP regarding supplementary aids and services could not be determined.

Within 20 days of the date of this decision, the district must reconvene the IEP team to review the student’s supplementary aids and services to ensure that the district’s commitment of resources and the amount of time committed are clear. The district must ensure all involved in the development and implementation of the IEP have a shared understanding of these services, including the student’s parents. Within 10 days of the IEP team meeting, the district will submit the updated IEP and corresponding documents to the department.

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.