On June 1, 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 issues are whether the district, during the 2022-23 school year:
- Properly implemented the individualized education programs (IEPs) of several students with disabilities regarding specially designed instruction;
- Properly implemented the IEP of one student with a disability regarding supplementary aids and services, including proper amounts of adult support;
- Provided special education services utilizing properly licensed staff;
- Improperly made changes to one student’s IEP outside of a team meeting inaccurately reflecting the determinations of the IEP team; and
- Properly described the amount, frequency, location, and duration of adult support required by one student.
Whether the district properly implemented the individualized education programs (IEPs) of six students with disabilities regarding specially designed instruction.
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 student’s IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324.
The complainant is a special education teacher formerly employed by the school district. The complainant alleges they were unable to provide specially designed instruction as specified in six students’ IEPs on specific occasions between September 19, 2022, and March 3, 2023. The complainant provided the department with a summary of the instruction she did not provide, which ranged from a total of 120 minutes to 580 minutes over the relevant time period. There was no evidence demonstrating that specially designed instruction was provided. The district now has a system in place to monitor the implementation of IEPs and address non-implementation when it occurs. Therefore, no further district-wide corrective action will be required for this issue.
Within 30 days of the date of this decision, the district shall offer the parents of the six students identified below the opportunity to have an IEP team meeting to discuss the need for compensatory services resulting from the non-implementation of the specially designed instruction identified by the complainant and submit information to the department documenting that this offer was made and the amount of compensatory services, if any, determined.
- Student A (####): The complainant alleged the district failed to provide 120 minutes of specially designed instruction in the special education environment as required by Student A’s IEP. The complainant documented eight instances of missed instruction from October 4, 2022, through February 9, 2023.
- Student B (####): The complainant alleged the district failed to provide 165 minutes of specially designed instruction in the special education environment as required by Student B’s IEP. The complainant documented 11 instances of missed instruction from October 12, 2022, through February 9, 2023.
- Student C (####): The complainant alleged that the district failed to provide 180 minutes of specially designed instruction in the special education environment and 20 minutes of specially designed instruction in the regular education environment as required by Student C’s IEP. The complainant documented 10 instances of missed instruction from October 12, 2022, through February 9, 2023.
- Student D (####): The complainant alleged that the district failed to provide 580 minutes of specially designed instruction in the regular education environment as required by Student D’s IEP. The IEP provides for 20 minutes of specialized instruction in self-advocacy skills daily. The complainant documented 29 instances of missed instruction from September 20, 2022, through March 3, 2023.
- Student E (####): The complainant alleged that the district failed to provide 140 minutes of specially designed instruction in the regular education environment as required by Student E’s IEP. The complainant documented seven instances of missed instruction between December 21, 2022, and March 3, 2023.
- Student F (####): The complainant alleged that the district failed to provide 240 minutes of specially designed instruction for functional academics in the special education environment and 60 minutes of specially designed instruction for self-help in the regular education environment as required by Student F’s IEP. The complainant documented eight instances of missed instruction, from February 7, 2023, through February 23, 2023.
Whether the district properly implemented the IEP of one student with a disability regarding supplementary aids and services and related services, including proper amounts of adult support.
The complainant alleges that one student with a disability (Student G - ####) was not provided supplementary aids and services as specified in their IEP between September 1, 2022, and February 2, 2023. The student’s IEP, in effect during that period, specified the student would be provided one-on-one adult support for all transitions, including arrival and dismissal, g-tube feedings, lunch, recess, safety drills, and field trips. The IEP also specified that dedicated adult assistance would be provided in changing of diapers or soiled clothing twice daily and additionally as needed. The complainant provided the department a summary of the instances in which the specified adult support was not provided for the student, including 49 times during transition, 10 times while changing, and 77 times while feeding. There is no evidence demonstrating that adult support was provided.
Within 30 days of the date of this decision, the district shall offer the student’s parents the opportunity to have an IEP team meeting to discuss the need for compensatory services resulting from the failure to provide adult support and submit information to the department documenting that this offer was made and the amount of compensatory services, if any, determined. Within 30 days of the date of this decision, the district shall also submit to the department a corrective action plan outlining the steps it will take during the 2023-24 school year to monitor and ensure the adult supports specified in the student’s IEP are provided as specified.
Whether the district properly provided special education services utilizing properly licensed staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19;
On April 17, 2023, the district employed a substitute teacher to assume the duties of a licensed special education teacher who had recently resigned. According to department licensure records, the teacher’s license was effective beginning on January 1, 2023. The district provided special education services utilizing properly licensed staff.
Whether the district improperly made changes to one student’s IEP outside of a team meeting, inaccurately reflecting the determinations of the IEP team.
Changes to a student’s IEP must be made by the student’s IEP team. 34 CFR § 300.324. Changes to a student's IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting or upon agreement of the parent and the district. The district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). A change of placement for a student must take place in an IEP team meeting. Wis. Stats. §§ 115.78(2)(c); 115.79
Student F’s IEP team met on January 18, 2023. At the meeting, the team discussed the nature of the student’s adult support, specifically whether shared adult support would be limited to the adult working with only one other student. The team also discussed whether the IEP should include notice provisions to the parent regarding the implementation of adult support. There is disagreement among IEP team members as to whether the IEP team reached a consensus on these items at the time the meeting concluded. There was no reflection of such a consensus in the final copy of the IEP provided to the parents on February 22. The student’s IEP team met again on March 20, 2023, to complete a reevaluation of the student and develop an annual IEP. At this meeting, the nature of adult support was again discussed. The team agreed that the complainant would continue to work with the parents after the meeting to craft appropriate language for the IEP regarding the frequency and amount of adult support. The complainant and parents did not come to an agreement, and the issue remained at the time the complainant left the district on April 12.
The IEP team is responsible for ensuring the services in the IEP are described with appropriate clarity and specificity, and the district should not have permitted the description of the frequency and amount of the service to remain unresolved. Because the language within the IEP was not resolved, the IEP did not accurately reflect the determinations of the IEP team. As student corrective action, within 30 days from the date of this meeting, the district must conduct an IEP team meeting to review and revise the frequency and amount of adult support so that it is clearly described and accurately reflects the decision of the IEP team. Within 10 days of the IEP team meeting, the district is directed to submit a copy of the revised IEP to the department.
Whether the district failed to clearly describe the amount, frequency, location, and duration of adult support required by one student.
The amount of services to be provided to a student must be stated in the student’s IEP in a manner appropriate to the service and must include the anticipated frequency the service will be provided, including the amount. In the case where it is impossible or inappropriate to describe supplementary aids and services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided. 34 CFR § 300.320[a].
Student F’s current IEP describes eight supplementary aids and services, including the provision of adult support. Four of the services require “one-on-one support,” three require “small group adult support,” and one requires “adult support.” For each service, the IEP further identifies whether the person providing the adult support requires any specialized skills or knowledge and describes the circumstances under which the adult support is to be provided. Department interviews confirmed that staff involved in implementing the student’s IEP understand the different levels of adult support. The student’s IEP properly describes these supplementary aids and services.
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 http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.