On June 26, 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, which are included below, pertain to the 2022-23 school year.
Whether the district, during the 2022-23 school year, properly held a meeting of the individualized education program (IEP) team of a student with a disability including all required members.
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 disability-related needs, documenting that program in the IEP, and implementing the program as articulated in the IEP. Among other required participants, school districts must ensure the IEP team for each student with a disability includes at least one regular education teacher of the student and a local educational agency (LEA) representative who has the knowledge and authority to commit district resources. A required IEP team participant may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the participant’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team participant submits written input into the development of the IEP prior to the meeting. Only required IEP team participants need to be excused in writing. 34 CFR § 300.321.
The complainant and the district agree that the student’s regular education teacher, whose name was included in the written IEP team meeting invitation, attended the May 8, 2023, meeting. However, the teacher left during the meeting early without prior notice or excusal. Additionally, the complainant and district agree that a psychologist was listed on the invitation but, without notice or explanation, did not attend the meeting. Generally, a school psychologist is not a required participant in IEP team meetings unless they are fulfilling a required role at the meeting. In this situation, the school psychologist was not a required participant. However, given that the psychologist was included on the IEP team meeting invitation, the parent was expecting them to attend. The district did not inform the parents of this absence prior to, or at the beginning of, the meeting. The district acknowledges neither of these absences should have occurred and has already taken steps to train staff on the requirements around IEP team participants and excusals. The district did not properly hold an IEP team meeting with all required members.
Whether the district, during the 2022-23 school year, properly developed and implemented the student’s IEP regarding assistive technology, properly documented decisions and revisions made by the student’s IEP team following a meeting, and properly allowed the student to participate in the IEP team meeting.
Each student’s IEP team must consider whether the student needs assistive technology devices and services. The IEP must include a statement of the special education services to be provided to the student that specifies the frequency, amount, location, and duration of those services. The services in the IEP must be stated in a manner that clearly describes the district’s commitment of resources to all involved in developing and implementing the IEP. 34 CFR §§ 300.320, 300.324; Wis. Stat. § 115.787.
Changes to an IEP may be made either by the entire 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), (6). Districts must provide the parents prior written notice a reasonable time before any proposed changes to a student’s IEP take effect. 34 CFR §§ 300.322(f) and 300.503.
The IEP in effect for the majority of the 2022-23 school year included assistive technology needs such as text-to-speech and voice-to-text, and supplementary aids and services that included preferential seating and access to the student’s cell phone. The assistive technology supports and supplementary aids and services were not discussed at the May 8, 2023, IEP team meeting. However, on May 11, 2023, the complainant received the IEP which included the following supplementary aids and services, “Echo II smartpen device + Livescribe notebook” and Co-writer, and Snap and Read installed on the student’s computer, which the student would be expected to use. In addition, the student’s supplementary aids and services specific to text to speech and voice to text support were removed from the IEP. The IEP also eliminated the student’s preferential seating and revised the student’s access to the cellphone so that the student “must” keep their phone in their pocket if the classroom teacher does not allow phones and that the phone may be used in conjunction with the smartpen device. The district acknowledges the assistive technology supports and supplementary aids and services were not discussed during the May 8, 2023, IEP team meeting and the changes were made outside of the IEP team meeting. However, the district asserts that the changes were never implemented with the student. The district continued to provide the student with assistive technology supplementary aids and services as described in the student’s previous IEP. The district improperly developed and implemented the student’s IEP regarding assistive technology and supplementary aids and services specific to preferential seating and cell phone usage. The district also improperly documented decisions and revisions made by the student’s IEP team following a meeting.
The department received documentation submitted by both the complainant and the district demonstrating the student was invited to and attended the May 8, 2023, IEP team meeting. Although the student’s assistive technology needs and supplementary aids and services specific to preferential seating and cell phone usage were not discussed at the meeting, the student was able to participate in the discussion that occurred during the IEP team meeting. The district properly allowed the student to participate in the IEP team meeting.
Whether the district, during the 2022-23 school year, properly implemented the student’s IEP regarding testing accommodations.
Each student’s IEP must include a statement of the special education, related services, and supplementary aids and services to be provided to the student, 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). Districts must ensure that each service provider is informed of their specific responsibilities related to implementing each student's IEP and the specific accommodations, modifications, and supports the district must provide the student in accordance with the IEP. 34 CFR § 300.324(d).
For most of the 2022-23 school year, the student had an IEP in place that was developed on May 12, 2022. The IEP included a supplementary aid and service stating the student has “additional time to take/re-take any general education, or elective course quiz or test [the student] has as much time as [they need] to complete or retake a quiz or test.” The parent indicates that one of the student’s general education teachers refused to allow the student to retake quizzes and tests.
According to district staff, the teacher did not refuse to implement this aspect of the student’s IEP. The student retook several quizzes and tests from that teacher’s class, as well as other classes with the student’s case manager. However, the exams were not always immediately graded resulting in the student’s grade not being immediately updated. Prior to the May 8, 2023, IEP team meeting, district staff communicated with the parent regarding the student’s status in their classes. The district properly implemented the student’s IEP regarding testing accommodations.
Whether the district, during the 2022-23 school year, properly informed the student and parents about the transfer of rights afforded to the parents under federal and state special education law that transfer to the student upon reaching 18 years of age.
Beginning not later than one year before the student reaches the age of 18, and annually thereafter, each student’s IEP must include a statement that the student has been informed of their rights, if any, that will transfer to the student on reaching the age of 18. The local education agency is required to provide this notice to both the student and their parents. 34 CFR § 300.320(c); Wis. Stat. § § 115.787(2)(g)(3); 115.807. The notice should be sent to both the student and their parents, but it is not required to be sent to each separately. While not required to discuss this notice at an IEP team meeting, it is important that the district ensure the student and their parents are properly informed of this transition.
The student’s parent indicated the transfer of rights was not discussed at an IEP team meeting and the parent only remembers receiving one notice from the district. According to district staff and information received, the transfer of rights was not discussed at the May 8, 2023, IEP team meeting. The district, however, included information on “Transfer of Rights” in the Postsecondary Transition Plan section of the May 2022 and the May 2023 IEPs. The May 2023 IEP also includes a document titled, “Notification of Upcoming Transfer of Rights”. While in hindsight, discussing the student’s transfer of rights during the IEP team may have alleviated any confusion, the district properly informed the student and parents about the transfer of rights afforded to the parents under federal and state special education that transfer to the student upon reaching 18 years of age.
Whether the district, during the 2022-23 school year, properly provided the parents a notice of their procedural safeguards.
Districts must provide parents of each student with a disability a copy of the notice of procedural safeguards once a school year. Additionally, districts must provide the parents a copy upon initial referral or parent request for evaluation, upon receipt of the first State complaint or due process complaint in a school year, in accordance with the discipline procedures, and at any time upon request by a parent. 34 CFR § 300.504(a).
The student’s parent acknowledges receiving the procedural safeguards annually from the district. However, the district sent a form titled, “Notice of Response to an Activity Requested by a Parent” in which the district refused to take an action requested by the parent. The parent believes a procedural safeguards notice should be sent with this notice. There is no requirement that the district send the procedural safeguards notice when the district refuses to take an action requested by a parent. The district properly provided the parents a notice of their procedural safeguards.
Whether the district, during the 2022-23 school year, properly scheduled IEP team meetings at a mutually agreed upon time and date.
A district must take steps to ensure parents the opportunity to participate at each IEP team meeting, including notifying parents of a meeting date early enough that they will have the opportunity to attend and scheduling the meeting at a mutually agreed on time and place. A district may conduct an IEP team meeting without a parent in attendance if the district is unable to convince the parents that they should attend. The district must keep a record of its attempts to arrange a mutually agreeable time and place. 34 CFR § 300.322. Districts must work with parents to schedule a mutually agreeable meeting time, but generally are not required to agree to a parent's request to meet at a specific time preferred by the parents.
The IEP team meeting on May 8, 2023, ended prior to discussing all aspects of the student’s IEP. Due to their personal schedules, the complainant requested in a May 11, 2023, email that the follow-up meeting to finish discussing the IEP be scheduled on an evening after 7:00 p.m. or during a weekend. The district responded to the parents’ request by sending a “Notice of Response to an activity requested by a parent” form on May 11, 2023, refusing the parents request and stating that, “requiring staff to hold a meeting 3 hours after their scheduled work day or on weekends is not a reasonable accommodation to the parents request.” While the district refused to meet after 7:00 p.m. or on a weekend, the district provided documentation to the department of their continued attempt to find a mutually agreed upon time and date to schedule an IEP team meeting. The district did not improperly schedule IEP team meetings.
Within 30 days of the date of this decision, the district must reconvene the student’s IEP team. The IEP team must discuss and determine the student’s needs regarding assistive technology and the student’s supplementary aids and services. The district must submit a copy of the revised IEP to the department within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP). This plan must include the following:
● Training materials regarding attendance at IEP team meetings including meeting excusal provisions, as well as information regarding who is being trained; and
● Training for appropriate district staff on making changes to an IEP outside of IEP team meetings, as well as who is being trained.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781