On March 22, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (District). This is the department’s decision regarding that complaint. The issue is whether the district, beginning March 23, 2022, properly developed an individualized education program (IEP) that is reasonably calculated to enable the student to make appropriate progress considering the student’s circumstances and implemented that IEP in the least restrictive environment, to ensure the student receives a free appropriate public education (FAPE).
School districts meet their obligation to provide a FAPE to each student with a disability, in part, by developing a program based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate considering 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 considering the child’s circumstances. The IEP must contain annual goals that are both ambitious and achievable so that the gap in academic achievement or functional performance is narrowed or closed during the period of the IEP. (34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78; Endrew F. v. Douglas County School District, 137 S.Ct. 988). In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114.
The student who is the subject of this complaint was in the second grade in March of 2022. The student’s IEP in effect at that time was developed in November of 2021. The IEP identified disability-related needs in the area of attention to task, social communication skills, math, literacy, medical, and language skills with associated annual goals in the area of math, literacy, attention to task, social skills, and communication. In support of the student’s goals, the IEP provided for 30 minutes per day of specially designed instruction in language arts in the general education classroom, 30 minutes per day of specially designed instruction in math in the general education classroom, and 10 minutes per day specially designed instruction in social and adaptive skills in the general education classroom. The IEP also provided 90 minutes per week of speech and language therapy, 40 minutes per week of occupational therapy, and 20 minutes per week of physical therapy, all in the special education setting. To support the student's health needs, the IEP specified the student would be allowed to nap for 60 minutes per day.
An IEP team meeting was held on April 5, 2022, to review the student’s IEP. At the meeting, the team determined the student would benefit from extended school year services and specified 50 minutes per day of academic instruction four days per week for six weeks and two 20-minute orientation sessions in August before the start of the new school year.
The student’s annual IEP team meeting was held on October 4, 2022. At the meeting, the team reviewed the annual goals developed for the student in November 2021. Based on current progress data, the team determined that the student had not met their math, literacy, social skills, or communication goals but had met their goal regarding attention to the task. The team developed new annual goals for the student in the areas of communication, basic reading skills, math, attention to task, and social communication. The reading skills and math goals contained benchmarks aligned with the third-grade Common Core Essential Elements. Each of the goals contained data regarding the student’s current baseline achievement and specified an expected level of attainment above the baseline. The IEP team specified specially designed instruction and related services in frequency and amount identical to that specified in the November 2021 IEP, though the location of the specially designed instruction was changed to the special education environment. Based on the IEP team’s review of the student’s current data, the student’s napping time was increased to 90 minutes per day.
During the first semester of the 2022-23 school year, the district conducted a reevaluation of the student at the request of the student’s parents. The student’s previous reevaluation was completed in November 2021. As part of the evaluation process, the student received administered standardized tests in math, written language, and intellectual abilities. The IEP team met on December 14, 2022, and determined the student continued to be a student with a disability in the areas of Other Health Impairment (due to medical diagnoses of Dravet Syndrome and Attention Deficit Hyperactive Disorder), Autism, and Speech or Language Impairment.
The IEP team met again on January 3, 2023, to review the student’s IEP considering the recently completed reevaluation. The team reviewed the student’s prior annual goals and determined that none had been met based on current data about the student’s progress. The team developed new annual goals for the student in the areas of language, basic reading skills, math, attention to task, and written language. Each of the goals contained data regarding the student’s current baseline achievement and specified an expected level of attainment above the baseline. The team added an additional five minutes per day of instruction in readiness skills and 30 minutes per month of adaptive physical education. The IEP team did not change the frequency and amount of the student’s related services.
The student’s parent is concerned that the student’s IEP is not appropriately ambitious, correctly pointing out the student is unable to read, write, or do math at the same level as typically developing peers. While state and federal special education laws require ambitious goals in the development of IEPs, the student’s circumstances must also be considered. The student faces significant intellectual delays and a physical condition that limits their stamina for engaging in instructional activities on a sustained basis. Considering those circumstances, the student’s IEP team has developed a reasonably calculated program to allow the student to make progress in the curriculum and toward their annual IEP goals. In fact, the IEP team would be remiss in its duties if it adopted goals for the student based solely on grade-level standards, which are not achievable within the period of an annual goal.
The parent is also concerned that the student is not receiving their education in the least restrictive environment due to the amount of time the student sleeps during the school day and removal from class for therapy services. The student’s IEP documents why the student’s educational programming cannot be achieved satisfactorily in the regular education environment, specifically noting that the student’s short attention span and the nature of the skills the student is working on require an environment free of distractions to allow the student to focus on the task at hand. The IEP team’s placement determination is reasonably supported by the student’s circumstances. It appears that the student sleeps significantly longer than the time specified in the IEP on many days, but it also appears that school staff are making good-faith efforts to rouse the student so that the student can continue to participate in their lessons. While this problem certainly deserves ongoing consideration and problem-solving by the IEP team, it does not indicate that the student has been inappropriately removed from the regular education environment.
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.